Fair Work Act 2009
s.394—Unfair dismissal

David Cowan
v
Sargeant Transport Pty Ltd
(U2014/5703)

Application for relief from unfair dismissal.

[1] This is an application by Mr David Cowan (the Applicant) seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009. Mr Cowan was employed by Sargeant Transport Pty Ltd (the Respondent) as a truck driver. His employment was terminated on 14 March 2014 for engaging in conduct in breach of his employment conditions. He commenced employment with the Respondent in November 2010.

[2] At the commencement of proceedings I granted permission for Mr Millar of Counsel to appear for the Respondent having concluded that it would not be fair to the Respondent to not allow representation and it would enable the matter to be dealt with more efficiently. The Applicant represented himself.

Background

[3] The Applicant was a delivery driver for the Respondent. He drove both long distance and locally for the Respondent. When driving locally he made deliveries to the Woolworths Regional Distribution Centre at Barnawatha (the RDC) 5-10 times per week.

[4] On 28 February 2014 the Applicant made a delivery to the RDC. The delivery was captured on CCTV. The Applicant arrived at the gate, pressed the intercom button and then moved to the far side of the truck, placed some paperwork from his hand into his mouth and, with his back to a CCTV camera, urinated. He then returned to the intercom, pressed the intercom button again, had a discussion over the intercom, returned to his truck and drove into the RDC.

[5] On 6 March 2014 a manager from the RDC wrote to Mr Simon Gray, Group Operations Manager for the Respondent and advised him of what it had captured on CCTV. The manager advised Mr Gray that the Applicant would be suspended for a period of three months from all Woolworths’ sites (in accordance with Woolworths’ policy). The manager requested that the Applicant be advised of the ban and that the Respondent advise of what action it would take against the Applicant.

[6] Mr Gray passed the matter onto Ms Kate Jewell, the Human Resources Manager for the Respondent. Ms Jewell rang the Applicant and had a discussion with him about the incident. The content of this discussion is contested and is considered below.

[7] On 7 March 2014 Ms Jewell had a further conversation with the Applicant in which she advised him that there was CCTV footage of the incident. Again the content of this discussion is contested and is considered below.

[8] On or about 12 March 2014 Mr Gray visited the RDC and viewed the CCTV footage. (As a matter of policy Woolworths does not release CCTV footage to outside parties but does allow it to be viewed.) Mr Gray rang Ms Jewell following his viewing of the CCTV footage and they agreed that the Applicant should be dismissed.

[9] That afternoon Ms Jewell rang the Applicant and advised him that his employment had been terminated. The Applicant received a letter dated 14 March 2014 confirming this decision.

Consideration

[10] I find that the Applicant is protected from unfair dismissal. His dismissal was not a redundancy and the Small Business Fair Dismissal Code does not apply.

[11] In determining if the Applicant was unfairly dismissed it is necessary first to determine if the dismissal was harsh, unjust or unreasonable.

[12] Section 387 of the Act states:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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 the FWC considers relevant.

(a) a valid reason

[13] The letter of termination states that the Applicant’s employment was terminated for his ‘act of misconduct.’ Whilst the letter does not say so, the misconduct referred to is urinating at the entrance to the RDC.

[14] Ms Jewell says the decision was made by her and Mr Gray to terminate the Applicant’s employment because:

1. [the Applicant’s] conduct was in breach of the standards of conduct set out in Sargeant Transport’s Driver Manual, and the conditions of [the Applicant’s] employment and constituted misconduct;

2. [the Applicant’s] conduct was not acceptable to Woolworth, which is an important customer of Sargeant Transport, is very particular about the conduct of [the Respondent’s] drivers on its sites and had banned [the Applicant] from its sites for three months;

3. [the Respondent] needed to protect Sargeant Transport’s reputation and maintain [its] client relationship with Woolworths, which required an explanation from Sergeant Transport as to the action which was taken as a result of the incident;

4. [the Applicant] lied to [Ms Jewell] during the investigation when he denied [...] that he had urinated on the Woolworths’ site;

5. no full time work was available for [the Applicant] which did not require him to access Woolworth’s sites; and

6. [The Applicant] had not provided any explanation for what he had done. 1 (sic)

[15] Mr Gray says that he, along with Ms Jewell, made the decision to terminate the Applicant’s employment. He says that he believes that Applicant lied in the investigation.

[16] In determining if there is a valid reason for the dismissal based on the conduct of the Applicant it is necessary for the Commission to first determine if the conduct occurred.

Did the Applicant urinate at the entrance to the RDC & breach the Respondent’s policy?

[17] The Applicant admits that he urinated outside the RDC entrance. In his written submissions and in his evidence in these proceedings he does not dispute this.

[18] Ms Jewell provided with her written testimony a copy of the Respondent’s ‘Drivers Manual’. That manual states that ‘all employees are to conduct themselves in a polite and courteous professional manner at all times whilst on duty...Whilst on a customer’s premises drivers are expected to adhere to any rules applicable at the site...’

[19] I consider it apparent, on any view, that urinating at the entrance to the RDC, is not conduct that could be described as ‘polite and courteous’ or ‘professional’ particularly in circumstances where there is no evidence to suggest that the Applicant attempted to access the site so that he could use the toilet.

[20] I am satisfied that the Applicant did urinate at the entrance to the RDC on 28 February 2014. Further, I am satisfied that the conduct was in breach of the Respondent’s policy as set out in the Drivers Manual.

Did the Applicant’s conduct damage the Respondent’s relationship with Woolworths?

[21] There is no evidence, as suggested by Mr Gray, that there was a ‘tide of backlash’ to the conduct of the Applicant from Woolworths or the client 2 (for whom the deliveries were made to Woolworths). Clearly Woolworths was not happy with the conduct of the Applicant, advised the Respondent that he was banned from all Woolworths’ sites for a period of three months and asked that it be advised of any action taken against the Applicant. On Mr Gray’s own evidence he had no conversation with anyone from Woolworths about the incident beyond seeking to view the CCTV footage. No evidence is given of any ‘backlash’.

[22] I am satisfied that Woolworths found the incident to be unacceptable and sought an explanation as to what action the Respondent intended to take in response to the incident. In responding to the incident I am satisfied that the Respondent sought to maintain its relationship with Woolworths. I cannot find any backlash, long lasting or on-going damage to the relationship between the Respondent and Woolworths.

Did the Applicant lie during the investigation?

[23] The Applicant and Ms Jewell provide different versions of the conversation each agrees took place on 6 March 2014. The Applicant says he was asked by Ms Jewell what had happened the night before to which he replied in relation to a mechanical problem. He says she then asked him if he had urinated at the gate to which he said ‘not last night’.

[24] Ms Jewell says that when she asked the Applicant if he had urinated at the site he denied it but then said he may have done so a month ago. She says she asked him if he had urinated at the site a week ago and he said no.

[25] The Applicant says he had a brief conversation with Ms Jewell and then asked if he could call her back as he was around other people. He says when he rang her back she told him he had been caught urinating on CCTV at the entrance to the RDC. He says he did not deny the incident and told Ms Jewell that if he had not urinated he would have wet himself.

[26] The Applicant says that he told Ms Jewell that he had diabetes and urinary urgency.

[27] Ms Jewell says she spoke to the Applicant again on 7 March 2014 and told him that the Respondent had access to CCTV footage to which the Applicant said it would not show anything. When she asked the Applicant ‘are you sure’ he replied ‘yes’. Ms Jewell says that the Applicant then said words to the effect ‘am I going to be sacked?’

[28] The CCTV footage was produced as part of the proceedings and viewed during the hearing of the matter. The Applicant agrees that it did show him urinating at the side of his truck.

[29] In his oral evidence the Applicant says he has never denied to the Respondent that he has diabetes. Whilst this is controlled by diet his evidence is that a side effect is urinary urgency. This means, he says, that there are times when he absolutely must urinate and he does not have time to wait.

[30] While the Applicant agrees in his evidence that there is a drivers’ room and toilet inside the RDC gate he says he could not wait and had to urinate immediately. The Applicant says he buzzed the intercom but no one answered. He says it can sometimes take up to five minutes to get through the gate and to the drivers’ room and he could not wait. He said that if he did not urinate then he would have wet himself, something he says would have been unacceptable to the Respondent and to Woolworths and would have caused him great embarrassment.

[31] The Applicant produced a letter from his doctor which indicates that diabetes and urinary urgency combined is ‘a common situation’. The doctor also said that the ‘need to pass urine urgently is fully understood by me. To expect him to wait an unknown time is totally unacceptable and it is not possible.’ Whilst the doctor was not called to give evidence the admission of the letter was not objected to by the Respondent during proceedings although it did make submissions that weight should not be attached to the letter because the Applicant had failed to call any expert evidence.

[32] Ms Jewell’s evidence is that the Applicant never told her he was diabetic or that this meant he had urinary urgency or that, if he had not urinated, he would have wet himself. I am inclined to accept the evidence of Ms Jewell on this matter. If she was told this it is unlikely to be something that she would forget. She has no reason to deny being told. While there are some criticisms to be made of the way the Respondent handled the investigation into this matter (discussed below) this does not imply that Ms Jewell’s evidence is unreliable.

[33] Mr Gray gave evidence that he had a conversation with the Applicant (prior to viewing the CCTV footage) in which he spoke to the Applicant about urinating at the entrance to the RDC. His evidence is that the Applicant did not tell him that he had diabetes or that this caused him to need to urinate urgently. Whilst I have some reservations about the credibility of Mr Gray as a witness, given his demeanour and general disposition in the witness box and the exaggeration at times in his evidence, I accept that the Applicant did not advise him of the urinary urgency. However, there is no basis on which I can conclude that the Applicant denied to Mr Gray that he had urinated at the entrance to the RDC.

[34] Mr Darren McKerrow, the Operations Supervisor for the Respondent, gives evidence that, in a conversation he had with the Applicant, the Applicant at first denied urinating at the RDC but then said he had gone ‘off the site out the front and relieved himself.’ This conversation was held prior to the Applicant being dismissed.

[35] The Applicant gives evidence that at the time he commenced working for the Respondent he included on his induction form that he had diabetes. He says he also spoke to the then HR Manager about this. The Applicant also gave evidence that it is common that people with diabetes suffer from urinary urgency. 3

[36] I have concluded that the Applicant is of the view that because he had included diabetes on his induction form his medical situation would be common knowledge amongst managers of the Respondent. I consider this, in conjunction with his view that it is common and common knowledge for urinary problems to be associated with diabetes, led him to believe that his managers would, or should, be aware that this was the reason he urinated at the entrance to the RDC. In these circumstances, whilst I found the Applicant to be forthright and clear in his evidence, I find that he did not advise Ms Jewell that he had diabetes and had no choice but to urinate or he would have wet himself.

[37] While I accept that the Applicant did not tell Ms Jewell that he had diabetes or urinary urgency, I am not convinced that he denied urinating at the RDC. It makes no logical sense that the Applicant would deny that he urinated to Ms Jewell but admit it to Mr McKerrow. For this reason I find that the Applicant did not lie to Ms Jewell during the investigation.

[38] I am not convinced that Ms Jewell was clear in the questions she asked of the Applicant in respect of the incident or the time the incident occurred. This, in my opinion, may have led to some confusion in answers given by the Applicant. This confusion in questions and answers I believe has resulted in Ms Jewell considering that the Applicant lied to her.

Could the Applicant have been put onto other work while the Woolworths ban was in place?

[39] The Respondent says that, given the Applicant could not deliver to Woolworths’ sites, it was not possible to continue to employ him while he was banned.

[40] The Applicant says that he had only commenced deliveries to the Woolworths RDC in December 2013. Prior to that he says he was a long distance driver for the Respondent and had delivered to Woolworths perhaps 10 times in three years.

[41] The Applicant also says that there had been a previous driver for the Respondent who had a lifetime ban from Woolworths’ sites and, when he was required to deliver to Woolworths, another driver would meet him and take over the delivery onto the site. Whilst Mr Gray denied that this had ever occurred Mr McKerrow agreed that it had occurred. 4

[42] Given the evidence of Mr McKerrow and that the Applicant had worked for the Respondent prior to December 2013 in a role where he did not need to deliver to Woolworths on any great number of occasions, I am not convinced that the Applicant could not have been placed in an alternative position with the Respondent for the period of the ban.

[43] It is worthwhile noting here that it is not clear that the Applicant was ever told by the Respondent that the ban from Woolworths was for a limited period of three months. The Applicant states that he was not told this by the Respondent but found out by contacting Woolworths. Ms Jewell’s oral evidence is that she could not recall if she had advised the Applicant of the period of the ban or if Mr Gray had done so. Mr Gray says he did not tell the Applicant of this fact. This was important information for the Applicant and may well have influenced how he responded to the matters put to him. Whether it would have resulted in a different outcome can’t be known but it is inexplicable why he was not told and inexcusable on the part of the Respondent.

Did the Applicant provide a satisfactory explanation for what he had done?

[44] Based on my findings above that the Applicant did not advise Ms Jewell that he had diabetes or urinary urgency I must find that the Applicant did not provide a satisfactory explanation for urinating at the entrance to the RDC.

[45] In so finding however I do not consider that the Respondent conducted the investigation in a way that enabled or encouraged the Applicant to do so. This matter is further addressed below.

Conclusion as to valid reason

[46] I have considered all of the reasons given by Ms Jewell for the dismissal of the Applicant and have found a number of the reasons to be unfounded. These unfounded reasons do not, therefore, provide a valid reason for the dismissal.

[47] However, I am satisfied that the Respondent had a valid reason to dismiss the Applicant in that the Applicant urinated at the entrance to the RDC, this conduct was not acceptable to Woolworths and the Respondent, and he failed to provide an adequate explanation for his conduct. Such conduct is unprofessional, is not something that could be seen acceptable and was a breach of the Respondent’s policies.

(b) was the Applicant advised of the reason for the dismissal

[48] In Crozier v Palazzo it was held that:

As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted. 5

[49] I am satisfied that the Applicant was aware that an investigation was taking place into an incident involving him urinating at the RDC. I am also satisfied that the Applicant was asked, on 6 (and perhaps again on 7) March 2014 for an explanation as to what occurred.

[50] Mr Gray’s evidence is that, on viewing the CCTV, he phoned Ms Jewell, told her the evidence was conclusive and that ‘we are going to have to let him go’.

[51] Ms Jewell’s evidence is that she and Mr Gray agreed that the Applicant would be dismissed. She says she then rang the Applicant, asked why he did not stop 100 metres down the road to which she says he did not respond and then advised him that his employment was terminated ‘for gross misconduct’.

[52] I am satisfied that the Applicant was advised that the reason for his dismissal was that he had engaged in misconduct. I am satisfied that he understood this misconduct to be that he had urinated at the entrance to the RDC. I am satisfied he was advised of this prior to the dismissal taking effect. The Applicant was not advised of any other reason for his dismissal.

(c) an opportunity to respond

[53] It is not enough that an employee be told of the reason for dismissal prior to the dismissal. He or she must also be given an opportunity to respond to that reason prior to the decision to dismiss being made. 6

[54] It is apparent from the evidence that the decision to dismiss the Applicant was made once Mr Gray viewed the CCTV footage. Following the viewing of the CCTV by Mr Gray, and on receipt of a phone call as to its content, Ms Jewell rang the Applicant and told him he was dismissed. It is clear that the CCTV footage was critical to the decision to dismiss the Applicant and that the decision to dismiss him was made prior to him being advised of the content of the CCTV.

[55] The Respondent is a reasonable sized company. It has about 240 employees. Ms Jewell has 20 years experience in human resources. Despite this there is no indication of a systematic approach to the investigation that would ensure the Applicant was aware of the allegations and evidence against him and was given proper opportunity to respond to this prior to the decision to dismiss him being made.

[56] I find it disturbing that neither Ms Jewell nor anyone else from the Respondent sat with the Applicant and explained to him the allegations, the evidence and the potential consequences of the allegations if proven, nor asked him why he should not be subject to a disciplinary outcome (including dismissal).

[57] On Ms Jewell’s evidence it appears that the telephone conversations she had with the Applicant would have, cumulatively, amounted to no more than five minutes in length. Even if Ms Jewell had difficulty physically travelling to the work site to meet with the Applicant, this could have been overcome by having the Applicant sit with his local manager (Mr McKerrow) with Ms Jewell on the phone to ensure that the Applicant did understand what was being put to him. Alternatively, if arranging such a meeting was too difficult, the Respondent could have put the allegations and potential consequences in writing to the Applicant and asked for his response.

[58] Ms Jewell suggests in her evidence that as the conduct warranted summary dismissal it did not require that a meeting occur. 7 I am not sure as to why she reached this conclusion. Whether the discussion took place in a meeting or over the phone (taking into account my observations below as to process and procedural fairness) the Applicant had a right to be advised of the reason for his dismissal, to be given a right to provide anything he wished to put in mitigation for his actions and to have this considered prior to the decision to dismiss him being made.

[59] For these reasons I find that the Applicant was not given an opportunity to respond.

(d) a support person

[60] Because of the way Ms Jewell chose to have her interactions with the Applicant and because he was not advised of the potential outcome of the investigation, there was no discussion in relation to the dismissal or reasons for the dismissal such that the Applicant could have brought a support person along.

[61] The Respondent, by the manner in which it chose to deal with the Applicant, and because it did not provide him with an opportunity to respond prior to making the decision to terminate his employment, did unreasonably refuse the Applicant the opportunity to have a support person present in discussions.

[62] That an employer can, by the way it structures its discussions with an employee deny the employee the opportunity to have a support person present does not abrogate it of its responsibility to not unreasonably refuse an employee such an opportunity. The structuring of discussions around the dismissal that have the effect of refusing an employee such an opportunity do, by their nature, create the unreasonableness. Such a structure cannot then be used as a defence in considering this matter.

(e) unsatisfactory performance

[63] This dismissal does not relate to unsatisfactory performance. This section of the Act does therefore not apply

(f)-(g) the size of the employers undertaking, the effect this would have on the procedures and access to specialist human resource management specialist

[64] The Respondent has about 240 employees. Ms Jewell is the Human Resources Manager. She has worked for the Respondent for one year but has 20 years experience in human resources.

[65] Given the size of the Respondent’s enterprise and the expertise of Ms Jewell I would expect a developed process for the investigation of the conduct of the Applicant and for the process used to effect his dismissal. I am, however, not satisfied that this is the case.

[66] There is no evidence of any history of misconduct or disciplinary issues associated with the Applicant’s employment with the Respondent.

(h) any other matters

[67] The Applicant says that the termination of his employment has had adverse consequences on him both emotionally and financially. He says he and his partner have had difficulties and he fell into debt and had trouble paying his utility bills.

Conclusion as to harsh, unjust or unreasonable

[68] In Byrne v Australian Airlines Ltd it was held that:

the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.  8

[69] In this case I am satisfied that there was a valid reason for the dismissal of the Applicant. The Respondent, however, made some fundamental errors in the way it conducted the investigation and the way in which it reached its decision to terminate the Applicant’s employment.

[70] Woolworths, while considering the conduct serious, considered it only warranted a three month ban from its sites. The Applicant now delivers to the Woolworths RDC for his current employer with no difficulties.

[71] Whilst the conduct of the Applicant, Woolworths’ view of the conduct and the Applicant’s failure to explain the conduct provide a valid reason for his dismissal, the decision to dismiss the Applicant was harsh given the time limited ban from Woolworths’ sites and the capacity, on the evidence, to place the Applicant in work not requiring regular delivers to the RDC or other Woolworths’ sites for the period of the ban. The conduct warranted disciplinary action but I consider dismissal a harsh decision.

[72] The decision to terminate the Applicant’s employment was also harsh because of the personal effects of that decision.

[73] At no stage was any allegation put to the Applicant in writing, nor the extent of the evidence explained to him. Further, some relevant information, such as the length of the ban from Woolworths, was not given to the Applicant.

[74] The decision to dismiss the Applicant was also unreasonable in circumstances where there was a lack of procedural fairness. The existence of a valid reason must be balanced against the lack of procedural fairness. Procedural fairness is an important consideration. It should not be lightly cast aside. Its proper application ensures a robust and just process for all involved.

[75] I therefore find the dismissal of the Applicant was harsh and unreasonable.

[76] For the reasons given I find that the Applicant was unfairly dismissed.

Compensation

[77] The Applicant does not seek reinstatement but rather seeks compensation.

[78] I am satisfied that reinstatement is not appropriate in this matter and shall therefore consider an order for compensation.

[79] In considering an order for compensation the Act states:

392 Remedy—compensation

Compensation

(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), the FWC 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 the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC 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 the FWC 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.

Compensation cap

(5) The amount ordered by the FWC 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.

Evidence

[80] The Applicant’s evidence is that, prior to the termination of his employment he was earning between $1200 and $1500 per week net. No evidence was given to the contrary. His employment was terminated on 14 March 2014.

[81] The Applicant gained further permanent employment from 11 June 2014 and is earning $1200-$1300 net per week. Prior to the commencement of his permanent employment he did some casual work for three weeks, earning a total of $1500 in that period.

[82] The Applicant says that from the time his employment was terminated he commenced applying for positions and cold calling employers in the hope of securing employment. There is no evidence of any other misconduct or performance issues associated with the Applicant’s employment with the Respondent. His evidence is he has been a truck driver for most of his working life. He is 50 years old and there is no reason to think he would not have continued in employment for a lengthy period.

Consideration

[83] I do not consider that the making of an order for compensation will affect the viability of the Respondent (s.392(2)(a)).

[84] The Applicant was employed by the Respondent for three and one half years prior to his dismissal (s.392(2)(b)).

[85] I am satisfied that, had the Applicant not been dismissed, he would have remained in the employment of the Respondent for a further period of at least two years. His lost remuneration if he had not gained further employment, is estimated at $140,400 net (based on an average net pay of $1350) plus superannuation.

[86] This amount needs to be reduced by the amount the Applicant received in lieu of notice ($2657 gross). 9 In this case I am not aware of the net amount of his payment in lieu of notice. I deal with this below.

[87] The Applicant has gained permanent employment and is now earning (on average) $1250 net per week, $100 per week net less than he was earning with the Respondent.

[88] The Applicant’s ‘lost’ remuneration is:

[89] This amount should be reduced for contingencies. A deduction for contingencies is to ‘take account of other matters which might otherwise adversely affect earning capacity.’ 14 I am satisfied that a deduction for contingencies against future losses (from the time of hearing) of 10% should be applied. There is no suggestion of a deduction being necessary for contingencies prior to the hearing date. The Applicant is in new employment, that employment appears stable and he is again driving trucks and delivering to Woolworths’ sites. He manages his diabetes by diet and has recently undergone a medical examination for the purpose of his current employment.

[90] The application of the contingency results in a reduction of $860 from his lost income post the date of hearing.

[91] Taking into account the deduction for contingencies the total loss of income of the Applicant is therefore $23040 (net) less the net amount of the notice paid to him (s.392(2)(c), (e) & (f)).

[92] It should be noted that the Applicant has also lost superannuation which necessarily forms part of the remuneration. Any order for compensation will include an amount for superannuation.

[93] I am satisfied that the Applicant made substantial and immediate attempts to mitigate his loss (s.392(2)(d)). I do not consider that any deduction should be made because of a lack of effort to mitigate the loss.

[94] I am satisfied that the Applicant’s misconduct contributed to the employer’s decision to terminate his employment. The Applicant admits to the conduct although says there was a reasonable explanation as to his actions. That there was an explanation may be so but this does not diminish the Applicant’s contribution of the conduct to the reason for dismissal. The Applicant’s actions in urinating at the entrance to the RDC had the potential to affect the relationship between the Respondent and its primary client (for whom it delivered to the RDC). This however should be balanced against the decision of Woolworths to only ban the Applicant from its sites for a three month period.

[95] Evidence was heard in the proceedings of a previous employee of the Respondent who was banned from Woolworths’ sites for life (although it is not clear if this ban occurred while he worked for the Respondent or prior to working for the Respondent). Clearly the actions of the Applicant were not such that Woolworths considered a lifetime ban appropriate. This can be taken as an indication of the severity with which Woolworths viewed the actions.

[96] Having taken the conduct of the Applicant into account I consider that the amount of compensation should be reduced by 30% for misconduct. I therefore find that the Applicant should be paid an amount of compensation equivalent to $16128 less the net amount of payment received in lieu of notice.

[97] In addition the Applicant should also be paid superannuation on the lost income.

[98] The amount I shall award does not include any component for shock or distress and is less than the compensation cap.

Conclusion as to compensation

[99] I have indicated above the amount of compensation I believe should be awarded.

[100] The Respondent is required to provide, within seven days of the issue of this decision, information as to the net payment made to the Applicant in respect of the amount paid to him in lieu of notice.

[101] An order will issue following receipt of that information.

COMMISSIONER

Appearances:

D. Cowan for the Applicant.

R. Millar of Counsel for the Respondent.

Hearing details:

2014.

Wodonga:

July 23.

 1   Exhibit R1, paragraph 14.

 2   Transcript PN415.

 3   Transcript PN402. See also Applicant’s written submissions: www.continence.org.nz and www.diabetes.about.com.

 4   Transcript PN598.

 5   (2000) 98 IR 137, 151 [73].

 6   (2000) 98 IR 137, 151 [75].

 7   Transcript PN368.

 8   (1995) 185 CLR 410, 465.

 9   See separation certificate, Exhibit R1, attachment KJ7.

 10   Period without employment.

 11   Earnings as a casual employee.

 12   Date of hearing.

 13   The difference in Applicant’s net earnings between with the Respondent and his new employer is, on average, $100 ($1350 - $1250).

 14   Wynn v NSW Insurance Ministerial Corporation the High Court (per Dawson, Toohey, Gaudron and Gummow JJ) as cited in Ellawala v Australian Postal Corporation Print S5109 (17 April 2000), [37].

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