[2011] FWA 3354

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Fair Work Act 2009
s.394—Unfair dismissal

Cong Nguyen
IGA Distribution (Vic) Pty Ltd



Application for unfair dismissal remedy - reinstatement.


[1] In Nguyen v IGA Distribution (Vic) Pty Ltd 1 (the principal decision), I found that the termination of Mr Nguyen’s employment was harsh, unjust or unreasonable. In so deciding I also found that:

[2] I determined that I should hear further from the parties on the matter of reinstatement of Mr Nguyen to his previous employment. In doing so I found that there was ‘no evidence to suggest that there has been such a break down in trust and confidence between IGA and Mr Nguyen that reinstatement should not be considered. This much is clear from the evidence.’ 2

[3] I also found that ‘I see no reason why Mr Nguyen should not be reinstated. I do not consider however that I have adequate information before me on which to determine if he should be reinstated into the position he held prior to the termination of his employment or if there are other employment options for him at the site at Laverton.’ 3

[4] Matters associated with the reinstatement of Mr Nguyen were heard by me on 16 and 17 May 2011.

The evidence

[5] Evidence was given in these proceedings by:

[6] Mr Nguyen’s evidence is that he has continued to look for work since the termination of his employment. He agreed that he would be willing to participate in training on safe forklift operation if he were reinstated. Mr Nguyen’s evidence is that he did not assault Mr Josevski although he did come very close to him.

[7] Mr Ahmet gave evidence that he had a conversation with Mr Henczel in which Mr Henczel indicated that the company was looking at putting on another permanent employee or hiring more casual employees. Mr Ahmet gave evidence that Mr Josevski told him twice prior to the incident subject to this decision that he intended to resign and that he had witnessed Mr Josevski raising his voice and being aggressive in the past. Mr Ahmet also gave evidence of observing Mr Nguyen and others driving forklifts carelessly and of general health and safety incidents at the site.

[8] Mr Brown’s evidence is that he would be concerned about Mr Nguyen being reinstated because of his behaviour at the time of the incident and during the investigation. Mr Brown agreed that his knowledge of these events comes from reports provided to him by the managers involved in the investigation and is not his direct knowledge.

[9] Mr Brown gave evidence on the safety culture at the site and evidence of the different conditions of employment across the various warehouses on the site.

[10] Mr Josevski gave evidence of the exchange between himself and Mr Nguyen immediately following the collision between the two forklifts. He says that Mr Nguyen ‘chested’ him (ie bumped him chest to chest). He is concerned that if Mr Nguyen is reinstated to the warehouse this could send a message that an employee can assault a supervisor and get away with it. Mr Josevski is not aware that this exchange between himself and Mr Nguyen was not the reason or part of the reason for the termination of Mr Nguyen’s employment.

[11] Mr Josevski also claimed in his written testimony, which he adopted as true and correct, that he would resign if Mr Nguyen was reinstated at the warehouse. Under cross examination he agreed that he had considered resigning prior to this incident and this was related to his lack of advancement. Mr Josevski also stated that when he has previously had cause to raise an issue with Mr Nguyen about his attitude it was resolved quickly by discussion.

[12] Mr Baldwin’s evidence is that he is concerned about how Mr Nguyen drives a forklift and that there are a few people at the warehouse (including Mr Nguyen) who need to be given a bit more space when they are driving a forklift. Whilst he does not want Mr Nguyen to lose his job he considered it was a question of what Mr Nguyen had learned from the incident.

[13] Mr Baldwin gave evidence that he would be uncomfortable if Mr Nguyen was reinstated but agreed that this was because he had given evidence in the proceedings. He agreed that if Mr Nguyen said there were no hard feelings he might feel better about Mr Nguyen coming back into the workplace.

[14] Mr Retallack’s evidence is that he would be concerned if Mr Nguyen was reinstated as it was ‘general knowledge’ that Mr Nguyen was an unsafe driver, although he agreed Mr Nguyen was not the only employee who was thought unsafe. Mr Retallack is also concerned that if Mr Nguyen is reinstated it would condone his behaviour in deliberately ramming a forklift and abusing a supervisor. Mr Retallack agreed that he was not aware of the principal decision or the reasons for that decision.

[15] Mr Henczel is the current Perishables Warehouse Manager. He did not occupy that position at the time of the incident nor was he involved in the investigation or decision to terminate Mr Nguyen’s employment. Mr Henczel’s evidence is that, whilst no contingency had been put in place for Mr Nguyen’s reinstatement following on from the principal decision, if Mr Nguyen was reinstated he would be placed back in the perishables warehouse. Mr Henczel’s evidence is that he understands the need for people to work well together and that, where there is conflict, he would work with employees to overcome this.


[16] Section 391 of the Act provides:

391 Remedy—reinstatement etc.

[17] Each of the matters raised in this section needs to be considered in determining what final orders should be issued. Pending a detailed consideration of the evidence and submissions this consideration starts from the position adopted in the principal decision - that there is no reason why Mr Nguyen should not be reinstated.

Location of reinstatement (s.391(1))

[18] The Respondent operates three warehouses at the Laverton site: the Perishables Warehouse (where Mr Nguyen worked prior to his dismissal); the Grocery Warehouse; and the NDC Warehouse. The Perishables Warehouse is covered by the IGA Distribution Vic Pty Ltd - National Union of Workers Collective Agreement 2008 (NUW Agreement) while the Grocery and NDC Warehouses are covered by the IGA Distribution Vic Pty Ltd and Shop Distributive and Allied Employees Association Enterprise Agreement 2010 (SDA Agreement).

[19] The Applicant submits that Mr Nguyen should be reinstated to the position he occupied at the time of his dismissal. The Respondent says that he should not be reinstated but, if he is, he should be placed in an alternative warehouse at the site (ie Grocery or NDC).

[20] In Blackadder v Ramsey Butchering Services Pty Ltd 4 McHugh J found that

[21] Provisions in the Act with respect to reinstatement are not substantively altered from those that were considered in Blackadder.

[22] In Britax Rainsfords Pty Ltd v Jones 6 a Full Bench considered matters which it felt may be taken into account in considering reinstatement of an employee. These are:

[23] Mr Nguyen submits that these are relevant matters to consider in determining the place of his reinstatement - that is whether he should be reinstated to the Perishables Warehouse or one of the other two warehouses on site.

[24] The Respondent argues that it has lost the trust and confidence necessary for the Applicant to be reinstated and that this constitutes a valid ground on which to determine that reinstatement is not appropriate. 8 Further, it submits that it has little or no confidence that the Applicant, if reinstated, will carry out his duties in an appropriate manner and that this also constitutes a valid ground on which to determine that reinstatement is not appropriate.9

[25] Much of the Respondent’s evidence and submissions seek a reversal of my principal decision that there was no evidence of a breakdown in trust and confidence and that there was no reason why Mr Nguyen should not be reinstated. These submissions are also relevant to the question of the position to which Mr Nguyen should be reinstated.

[26] The Applicant submits that the first consideration must be reinstatement to the position he held prior to his dismissal. Only if that is not possible (which is not conceded) should reinstatement to another position be considered. The Applicant asks that, in determining if Mr Nguyen can be reinstated to his position in the Perishables Warehouse, I consider those matters identified in Britax. Given that the Respondent’s submissions very much go to trust and confidence and the ability to establish a working relationship, it is appropriate that I consider each of those matter in Britax to inform me of those matters under s.391(1)(a).

[27] The evidence of the Respondent is that there is no position available in the Perishables Warehouse and therefore it is not possible to reappoint the Applicant to the position he occupied prior to his dismissal. Further, it submits there are no vacancies in the NDC or Groceries Warehouses. Whilst this may be the case, Mr Henczel gave evidence that the Respondent had not put in place any contingency plan to deal with the possible reinstatement of Mr Nguyen. Mr Henczel indicated that, should I reinstate Mr Nguyen to the position he occupied prior to his dismissal, that will be accommodated.

[28] The Respondent has known reinstatement was likely to occur following my decision on 16 March 2011. I do not consider that just because the employer says it has no position available this is grounds for not reinstating Mr Nguyen. If the existence of a position was determinative of reinstatement all it would take for an employer to thwart the intention of the tribunal would be to ensure all positions, or the actual position occupied by an employee, was filled. The power to determine reinstatement cannot be intended to reside in the employer in such a fashion. In any event the evidence of the Respondent is that it continues to engage casual employees at the warehouse (although I understand the casuals are not directly employed by IGA).

[29] The Respondent submits that it has no confidence in Mr Nguyen’s ability to perform his duties. It relies on Mr Nguyen’s evidence that, at the time of the incident, he was concerned that he would receive a warning for not completing his work even though he had never received a warning in the past, and that the (then) Warehouse Manager had never told Mr Nguyen that he would receive three warnings and then be dismissed. Further, it submits that Mr Nguyen acted in an aggressive manner towards Mr Josevski.

[30] Mr Nguyen’s evidence is that he understood an employee would receive three warnings and then be dismissed and that he could be disciplined for not meeting his targets. Of the ‘three strikes and you’re out’ policy I found in the principal decision that

[31] There is no basis to alter that finding.

[32] The implication of the Respondent’s submission is that because Mr Nguyen had not been disciplined in the past for not meeting his time targets he has no reason to believe he will ever be disciplined over such a matter. If that is the Respondent’s view then I am sure it will alleviate some pressure on employees at the warehouse. I doubt however that this is its view. I expect the targets are there for a reason and the expectation is that employees will meet them. That Mr Nguyen believes he is required to meet the targets does not seem to me to provide a reason for the Respondent to have no confidence in Mr Nguyen.

[33] A substantial amount of evidence was given in this matter with respect to the incident between Mr Nguyen and Mr Josevski following the collision between the forklifts. Mr Josevski did not give evidence in the proceedings leading up to the principal decision, although he is of the view that Mr Nguyen’s employment was terminated because of this incident.

[34] The evidence of this incident is very mixed. Mr Nguyen, whilst admitting he got close to Mr Josevski and was pointing, does not agree that he touched Mr Josevski. Mr Josevski says Mr Nguyen ‘chested’ him. Mr Retallack says the incident went on for five minutes while Mr Baldwin says it was over in 30 seconds. Mr Meindl, who was present during this incident, gave evidence in the principal proceedings that Mr Nguyen ‘became extremely agitated and made threatening gestures to Dragi [Josevski], and invaded Dragi’s personal space, by making contact with his chest and putting his face extremely close to Dragi’s.’ Mr Nguyen stepped back after Mr Meindl` asked him to.  11

[35] I have considered all of the evidence in relation to this incident. I consider Mr Retallack’s evidence on the matter unreliable. It does not accord with other witnesses. Mr Meindl, Mr Baldwin and Mr Josevski all say that Mr Nguyen came into contact with Mr Josevski. I accept their evidence. Based on this I find that Mr Nguyen did make contact with Mr Josevski in the chest. I find that the confrontation was over quickly when Mr Meindl asked Mr Nguyen to step back. Whilst it is unfortunate and improper behaviour I do not consider it a basis to not reinstate Mr Nguyen to the Perishables Warehouse. Evidence in the initial proceedings was that Mr Nguyen was highly agitated at the time of the incident with Mr Josevski. Mr Nguyen felt that he had to hurry to complete his work because Mr Josevski had given him other tasks to complete. There is no evidence that this is Mr Nguyen’s normal state.

[36] Mr Josevski has said that if Mr Nguyen was reinstated it is likely he would resign and that, as he has given 16 years to IGA, he would not want to do so. 12 Having said this in his sworn statement Mr Josevski agreed that he had considered resigning for other reasons including his lack of advancement. He also agreed that on the one occasion in the past where he needed to counsel Mr Nguyen to cease some particular behaviour he only needed to tell Mr Nguyen once and the behaviour stopped. Further, Mr Josevski did not supervise Mr Nguyen on a day to day basis. I find Mr Joseveski’s written evidence that he may resign if Mr Nguyen is reinstated unreliable. He has spoken in the past of resigning for reasons that have nothing to do with Mr Nguyen. He also has an incorrect view as to why Mr Nguyen was dismissed from his employment that I consider is clouding his judgement on the matter.

[37] Further evidence was given about the relationship between Mr Nguyen and those who have given evidence in these and the previous proceedings about the incident that led to Mr Nguyen’s dismissal. Mr Baldwin however indicated that his concerns could be overcome if Mr Nguyen indicated that there were no hard feelings. The concerns of Mr Retallack, and to an extent Mr Josevski, are based on their personal views as to why Mr Nguyen was dismissed and do not take into account the findings and decision in the principal decision. I do not consider that these provide grounds for not reinstating Mr Nguyen.

[38] On the basis of all of the evidence I consider that Mr Nguyen will be able to perform the duties of his position (subject to some re-training detailed below). I consider that there is the capacity for Mr Nguyen to establish a proper working relationship with his fellow employees.

[39] The Respondent argues that it has lost trust and confidence in Mr Nguyen and does not consider the employment relationship can be re-established.

[40] In Perkins v Grace Worldwide (Aust) Pty Ltd 13 the Industrial Relations Court considered the loss of trust and confidence in an environment where employment had been terminated. The Court found that

[41] The principles raised in Perkins were applied in Richards v Regional Express Holdings Ltd T/A REX Airlines 15 where it was said that

[42] Much of the evidence in support of the argument for a loss of trust and confidence in Mr Nguyen is based on particular employees’ beliefs as to what caused the initial incident as opposed to my specific finding on the question of the application for relief from termination by Mr Nguyen. The views relied on with respect to the future working relationship and trust and confidence are based on hearsay or a false premise as to the reason for the dismissal. In this respect I do not consider the basis for the said loss of trust and confidence to be rationally based. This is not to suggest that the witnesses have deliberately sought to mislead the tribunal. They may truly hold these beliefs but that does not make them correct.

[43] Based on the principles in Perkins I am not convinced that there has been a loss of trust and confidence such that the employment relationship has been irrevocably destroyed. I find therefore that Mr Nguyen should be reinstated.

Should Mr Nguyen be reinstated to the Grocery or NDC Warehouses?(s.391(1)(b))

[44] The evidence of Mr Brown is that the terms and conditions of employment under the SDA Agreement that covers the Grocery and NDC Warehouses are different to those under the NUW Agreement covering the Perishables Warehouse. The key differences include rates of pay, holidays and annual leave, and working patterns (hours of work per day).

[45] Section 391(1)(b) allows for reinstatement to be to another position on terms and conditions no less favourable than those on which Mr Nguyen was employed prior to his dismissal. On the basis of the provisions in s.391(1)(b) it would not be possible, as the Respondent seeks, that Mr Nguyen be appointed to either the Grocery or NDC Warehouse under the conditions of the SDA Agreement. These would not be ‘no less favourable’ than the conditions in the Perishables Warehouse under the NUW Agreement.

[46] It appears that it is not possible to appoint Mr Nguyen to a position in the Grocery or NDC Warehouse on terms and conditions no less favourable than those in the Perishables Warehouse without putting in place particular arrangements for Mr Nguyen. Given the substantial difference between the terms and conditions of the two warehouses I do not consider this a viable option.

Should Mr Nguyen be reinstated to the Perishables Warehouse?

[47] Given all of those matters considered above I see no reason not to reinstate Mr Nguyen to the Perishables Warehouse.

[48] I recognise that there may be some tension in the workplace arising from the reinstatement of Mr Nguyen. This is almost inevitable given the time that has elapsed since the dismissal, the events surrounding the dismissal and the apparent lack of knowledge about the grounds for the dismissal and the reason for the principal decision.

[49] This tension is not a basis for refusing the reinstatement that Mr Nguyen seeks. It is however a matter that management must respond to. Having heard the evidence of Mr Henczel and observed him in giving evidence I am confident that, with the support of more senior management of IGA, he will respond to any difficulties that arise as a result of the reinstatement and handle them in a professional and appropriate manner.

[50] Whilst there is no specific position available at the Perishables Warehouse, that management chose not to plan for the possibility of Mr Nguyen’s reinstatement should not disadvantage Mr Nguyen in seeking reinstatement.

[51] For all of these reasons I consider Mr Nguyen should be reinstated as at the date specified in the attendant order (being 6 June 2010) to the position in which he was employed in the Perishables Warehouse prior to his dismissal. An order to this effect will issue.

Order to maintain continuity (s.391(2))

[52] The Act allows Fair Work Australia to make an order under s.391(2)(a) maintaining continuity of employment and/or under s.391(2)(b) maintaining continuous service if it considers such orders appropriate.

[53] In deciding this issue I have taken into account all of the findings in the principal decision, including that Mr Nguyen was unfairly dismissed. That finding cannot be ignored in determining matters under this section of the Act.

[54] The Applicant submits that I should maintain continuity of his employment and that the period between Mr Nguyen’s dismissal and his date of reinstatement should count as continuous service with the Respondent. At least, it is argued, I should require that the period between 16 March 2011 (the date of the principal decision) and the date of reinstatement be considered continuous service with the Respondent.

[55] The Respondent submits that the termination of the Applicant’s employment was because of his own misconduct and that this misconduct would meet the definition of serious misconduct.

[56] The Respondent referred to the decision in Lindsay Douglas Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth 16 where a Full Bench made an order reinstating the employee and an order for continuity of service. They did not make an order under s.391(2)(b) with respect to continuous service but provided no reason for this. This decision was upheld on appeal to the Federal Court17 although I note matters associated with reinstatement were not subject to the decision. I find nothing in Lawrence v Coal & Allied that assists me in determining if I should make an order under s.391(2)(b).

[57] In all of the circumstances I consider that an order should issue maintaining continuity of service of Mr Nguyen (s.391(2)(a)). Mr Nguyen has over 20 years’ service with IGA. He has not been subject to formal disciplinary matters before this incident. He should retain the benefit of continuity of service.

[58] In the principal decision I found that Mr Nguyen caused the incident by his careless and reckless driving of the forklift, that this may have had serious consequences, and that he should be subject to some penalty for his behaviour. I do not consider that Mr Nguyen should have the totality of the period between his dismissal and date of reinstatement recognised as service for the purposes of s.391(2)(b). Mr Nguyen however should not be disadvantaged by the delay in his reinstatement caused by the delay in finalising this matter. I did find on 16 March 2011 that Mr Nguyen’s dismissal was harsh, unjust or unreasonable and that reinstatement is an appropriate remedy. I will therefore order that Mr Nguyen have the period from 16 March 2011 until the date of his reinstatement recognised as service. This, in addition to matters discussed below, is a real penalty imposed on Mr Nguyen. The order issued shall reflect this.

Order to restore lost pay (s.391(3)&(4))

[59] Sections 391(3)&(4) provide that if an order for reinstatement is made Fair Work Australia may, if it considers appropriate to do so, make an order to restore lost pay for the amount of remuneration lost by the person because of the dismissal.

[60] The Applicant submits that an order should be made restoring all lost pay suffered by Mr Nguyen. The Respondent submits that Mr Nguyen’s employment was terminated because of his own conduct and that an order to restore lost pay would be inappropriate and would send the wrong message to other employees of the Respondent with respect to safety issues in the workplace. If some order is made to restore lost pay however, the Respondent submits that such an order should take into account the Applicant’s misconduct.

[61] Mr Nguyen’s actions cannot be condoned. He should be subject to some penalty for his behaviour. In considering such a penalty I have taken into account Mr Nguyen’s lengthy service of over 20 years with the Respondent and the fact that he has not been subject to any disciplinary action in the past. I have also taken into account that the primary decision found his dismissal unfair. I recognise the utmost importance of health and safety in the workplace and do not condone any behaviour that places any worker’s health and safety at risk.

[62] Mr Nguyen’s employment was terminated on 23 September 2010. He was however given five weeks’ notice of termination plus a five week ex-gratia payment. Taking this into account Mr Nguyen received payment up to 2 December 2010. Loss of income is calculated from this date. At the time of his dismissal his gross weekly earnings were $1 081.10 per week. Had he remained employed until the date of reinstatement specified in the order (6 June 2011) he would have earned $28 541.04. 18

[63] During the period following his dismissal Mr Nguyen had some employment and earned a total of $10 218.69. It appears he was employed from late November 2010 to late February 2011 working varying times of between 8.6 hours and 48 hours per week. In the principal hearing of his unfair dismissal claim Mr Nguyen gave evidence of the jobs he had applied for and the difficulties he had finding employment. His oral evidence in this matter was that he continued to apply for positions but was not successful. I am satisfied that Mr Nguyen sought to mitigate his lost income.

[64] Mr Nguyen’s lost remuneration is therefore $18 322.35. As mentioned above however it is my view that Mr Nguyen should suffer some penalty for his actions. I have therefore determined that there should be a deduction equivalent to 6 weeks’ pay ($6 486.60) from the amount ultimately ordered. An order to restore lost pay of an amount of $11 835.75 will therefore be issued.

[65] Given the circumstances of this case, the period since he was dismissed and the apparent misinformation in the workplace, I also determine that the following actions be taken with respect to Mr Nguyen’s return to work with the Respondent:

[66] Further I recommend that management provide to those employees who have given evidence in these proceedings (Mr Josevski, Mr Baldwin and Mr Retallack) an explanation of the principal decision and this decision. Those employees are entitled to understand the decisions made by the tribunal where they have participated in those proceedings.



D. Mujkic of the National Union of Workers for the Applicant.

G. Johnson for the Respondent.

Hearing details:



16 & 17 May.

 1   [2011] FWA 1475.

 2   [2011] FWA 1475, [130].

 3   [2011] FWA 1475, [132].

 4   (2005) 221 CLR 539.

 5   (2005) 221 CLR 539, 544 [14].

 6   (2001) 109 IR 381.

 7   (2001) 109 IR 381, 393 [43].

 8   See Perkins v Graces Worldwide (Aust) Pty Ltd (1997) 72 IR 186.

 9   See Ellawala v Australian Postal Commission S5109 (17 April 2000).

 10   [2011] FWA 1475, [113].

 11   Exhibit IGA4, paragraphs 5-7.

 12   Exhibit IGA7, paragraph 20.

 13   (1997) 72 IR 186.

 14   (1997) 72 IR 186, 191.

 15   [2010] FWA 4230

 16   [2010] FWAFB 10089 (24 December 2010).

 17   Coal & Allied Mining Services Pty Ltd v Vice President Lawler, Senior Deputy President O’Callaghan & Commissioner Roberts of Fair Work Australia and Lindsay Douglas Lawrence [2011] FCAFC 54.

 18  2 December 2010 to 6 June 2011 is 26 weeks and 2 (working) days. Mr Nguyen’s salary was $1 081.10 per week ($216.22 per day).

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