[2013] FWC 760

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Fair Work Act 2009
s.394—Unfair dismissal

Zeb Dewson
Boom Logistics Ltd



Unfair dismissal - finding of unfair dismissal - reinstatement inappropriate - remedy of compensation.

[1] This Decision is made further to the Decision issued in this matter on 24 October 2012 [PR530509], (the primary Decision). In the primary Decision Fair Work Australia, now the Fair Work Commission (the Commission) made findings that the applicant, Zeb Dewson, had been unfairly dismissed by Boom Logistics Ltd (the employer) and that reinstatement was not an appropriate remedy. The question of an alternative remedy of monetary compensation was the subject of further evidence and submissions for determination in this Decision.

[2] The additional evidence included a Supplimental [sic] Statement of the applicant and a Further Witness Statement of one of the employer’s Managers, Mr Kosecki. These additional Statements were admitted without requirement to cross-examine either deponent.

[3] In summary, the additional evidence from the applicant provided details about other employment that he obtained some 5 days after his dismissal together with information concerning costs associated with relocation and housing associated with that new employment. The additional evidence from the employer concerned details of the housing arrangements of the applicant immediately following his dismissal and information regarding operational issues that have caused the employer to call for expressions of interest in voluntary redundancy.

The Applicant’s Case on Remedy

[4] The Construction, Forestry, Mining and Energy Union (CFMEU), made further submissions on behalf of the applicant which addressed the issue of remedy by way of compensation. These submissions referred to the relevant provisions of the Fair Work Act 2009 (the Act), and stated that an Order for compensation was entirely appropriate.

[5] The CFMEU submitted that as the employer was a large company an Order for compensation would not affect the viability of the employer. Further, the applicant had been employed for over 6 years and would have, according to the submissions of the CFMEU, continued in employment indefinitely. The applicant had mitigated his loss by gaining further employment which has generated remuneration of approximately $100 per week less than the employment from which he was unfairly dismissed and includes a casual loading.

[6] It was further submitted by the CFMEU that any Order of compensation made by the Commission should include various other costs directly incurred by the applicant as a result of his unfair dismissal. In this regard additional housing rental costs and removal expenses were quantified. The CFMEU also submitted that any Order of compensation should not be reduced on account of misconduct because the alleged misconduct relied upon by the employer was not confirmed by the Commission and the earlier misconduct which occurred at the Christmas party in 2010 did not contribute to the employer’s decision to dismiss the applicant.

[7] In addition, the CFMEU submitted that there was no component of shock, distress or humiliation attached to an Order for compensation that was calculated on the basis of half the high income threshold as $59,050 and which it urged the Commission to make.

The Employer’s Case on Remedy

[8] The employer’s primary submission was that in all the circumstances of the case it was not appropriate to make any Order for payment of compensation. According to the employer there was a threshold question raised by subsection 390 (3) (b) of the Act which should operate to deny any compensation Order as “... the applicant is to no small extent the author of his own misfortune.”

[9] The employer made further submissions about the particular factors contained in s.392 of the Act which direct the Commission regarding any amount of compensation which may be Ordered. The employer made no submission on the effect of an Order on its viability. The employer submitted that it was relevant to consider that the applicant’s period of service as a full-time crane operator was 4.5 years which it said was a modest length.

[10] The employer challenged the suggestion that the applicant would have continued in employment indefinitely. The employer noted that it was going to issue the applicant with a final warning over the 2010 Christmas party incident and there was likelihood that the applicant would engage in other misconduct as the employment relationship was in decline. Further, the employer stated that there was uncertainty surrounding ongoing employment in circumstances where it was inviting expressions of interest in redundancy.

[11] The employer stressed that the applicant gained further employment only 5 days after his dismissal and it was irrelevant if that employment was casual. According to the employer the Act was only concerned with the actual amount of remuneration and on its analysis the applicant now received higher remuneration for doing fewer hours per week.

[12] Further submissions were made by the employer which challenged the relevance of housing rental costs and made particular mention that the applicant lived rent free in employer provided accommodation for a period of about 6 weeks after his dismissal. The employer also said that the Commission should take into account the payment to the applicant of notice and all accrued entitlements upon termination amounted to $20,752.86.

[13] The employer also submitted that it was a mandatory requirement of the Act to reduce the amount of compensation in light of the misconduct of the applicant and distinguished the misconduct which occurred at the 2010 Christmas party from that which the Commission did not confirm in the primary Decision.

[14] In conclusion the employer urged the Commission to make no Order for payment of compensation because in all the circumstances of the case it was not appropriate. In addition, according to the employer, if compensation was entertained there was no identified lost remuneration, and when coupled with uncertainty in respect to ongoing employment, there was no compensable loss and therefore no Order of compensation should be made.


[15] The question of remedy in respect of an unfair dismissal is the subject of Division 4 of Part 3-2 (ss.390 - 393) of the Act. Sections 390 and 392 are relevant to consideration in this instance and these sections are in the following terms:

[16] In my view, sections 390 and 392 of the Act provide broad discretion with any determination of remedy for an unfair dismissal and the basis for and quantification of any remedy of compensation. In this case a threshold question arises from sub-section 390 (3) of the Act. In the primary Decision I decided that reinstatement of the applicant was inappropriate. However it is clear from sub-section 390 (3) (b) that compensation does not automatically follow a finding that reinstatement is inappropriate.

[17] The employer urged that I should find that the circumstances of this case were such that I should also not make the positive finding required by sub-section 390 (3) (b) that compensation was appropriate. The employer argued that the applicant’s established misconduct and other matters relating to the unacceptable state of the workplace should operate against a finding that compensation was appropriate.

[18] Following careful consideration I have decided that it would be appropriate to entertain compensation as remedy. I consider that responsibility for the parlous state of the employer’s workplace should not be visited almost exclusively upon the applicant. The employer has clear responsibilities in this regard. Further, I believe that to have the misconduct of the applicant used as basis for both the inappropriateness of reinstatement and rejection that compensation be appropriate would represent unfairness akin to being punished twice for the one crime.

[19] Consequently I have decided that compensation would be an appropriate remedy for the applicant’s unfair dismissal and I turn to the factors which involve the quantification of any amount of compensation.

[20] Section 392 of the Act prescribes certain matters that deal with compensation as a remedy for unfair dismissal. I have approached the question of compensation having regard for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s Licensed Festival Supermarket 1 and as commented upon in the subsequent Full Bench Decision in Smith and Ors v Moore Paragon Australia Ltd 2.

[21] Firstly, I confirm that an Order of the payment of compensation to the applicant will be made against the employer in lieu of reinstatement of the applicant.

[22] Secondly, in determining the amount of compensation that I Order I have taken into account all of the circumstances of the matter including the factors set out in paragraphs (a) to (g) of subsection 392 (2) of the Act.

[23] There was no evidence that an Order of compensation would impact on the viability of the employer’s enterprise.

[24] The applicant had approximately 6.5 years service. I reject the submission made by the employer that the initial engagement as a casual should not be counted as service.

[25] The applicant would have been likely to have received remuneration of approximately $2,679 per week if he had not been dismissed. The applicant’s employment would not have continued indefinitely as suggested by the CFMEU. There was some significant prospect that the employment may not have endured beyond a further year.

[26] The applicant made efforts to mitigate the loss suffered because of the dismissal and he obtained other work within 5 days after the dismissal. The applicant has earned comparable remuneration from the subsequent employment but that employment is casual and therefore includes a loading.

[27] Thirdly, in this instance I am satisfied that the misconduct of the applicant as alleged by the employer did erroneously contribute to the employer’s decision to dismiss. I have considered the applicant’s misconduct at the 2010 Christmas party and I dealt with that misconduct as part of the determinations made in the primary Decision.

[28] Fourthly, I confirm that any amount Ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the applicant by the manner of the dismissal.

[29] There are other relevant matters. The consideration of all factors relevant to compensation should be approached having cognisance that compensation should not be confused with penalty. I am mindful that compensation should not include some amount which represents a punishment to the employer for their actions in dismissing the applicant unfairly.

[30] Compensation ordinarily focuses upon identified lost remuneration and in this case a purely mathematical analysis showed that there was little identifiable lost remuneration. There are also other impacts of dismissal that can be identified. Evidence of direct additional costs incurred as a consequence of dismissal can be compensated where appropriate. 3 In this case there was evidence provided about direct additional costs connected with the dismissal. Balanced against those costs there was evidence that the applicant gained the benefit of rent free accommodation for a period after the dismissal.

[31] In addition, the applicant lost approximately 6.5 years of service that would have contributed to various service related benefits which were essentially zeroed as a consequence of the dismissal. These impacts are sometimes described as the loss of non-transferable employment credits. In other words, the applicant has had to start from scratch with the new employment in terms of his length of service, and all that is attached to length of service has been lost and would therefore be compensatable.

[32] Apart from direct costs and the loss of non-transferable employment credits for which some quantification could be made, there are also some less tangible impacts of dismissal. A variety of non-financial impacts would be occasioned by the loss of employment particularly in areas of a specialised vocation. For instance, the applicant’s curriculum vitae would always suffer, at least in general presentation, as a consequence of the dismissal from the employment.

[33] Consequently, in my view the assessment of compensation need not be confined to quantifiable financial loss. Indeed the assessment should properly extend beyond a balance sheet calculation. Therefore I have made assessment of compensation in this matter having incorporated the various elements mentioned including both quantifiable amounts and various non-tangible components.

[34] Consequently for the reasons outlined above I have decided that an amount approximating with two weeks remuneration should be Ordered as compensation to the applicant. That amount is $5,358.00. Accordingly separate Orders [PR533744] providing for remedy in these terms will be issued.


Final written submissions:

7 December 2012.

 1   Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.

 2   Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.

 3   Grace Wong v Nytro Pty Ltd trading as Nitro Gym (Smith DP), [2012] FWA 1927.

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<Price code C, PR533746>