[2017] FWC 921
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Michael Renton
v
Bendigo Health Care Group
(U2016/11206)

COMMISSIONER BISSETT

MELBOURNE, 20 FEBRUARY 2017

Application for relief from unfair dismissal- decision on remedy – reinstatement inappropriate - compensation ordered.

[1] On 30 December 2016 I issued a decision in Michael Renton v Bendigo Health Care Group 1 (Renton) is which I found:

[2] Mr Renton sought reinstatement. In my consideration of remedy I found reinstatement to be inappropriate for a number of reasons and stated that I would take further submissions from the parties with respect to compensation.

[3] As part of the submission process I asked the parties to advise if they wished to be further heard on compensation. Representatives of both Mr Renton and Bendigo Health Care Group (Bendigo Health) indicated they were content for the Fair Work Commission (the Commission) to determining compensation on the basis of the submissions and witness statement of Mr Renton filed with respect to compensation and on the evidence already given.

Legislation

[4] Section 392 of the Fair Work Act 2009 (the Act) sets out those matters relevant to the determination of compensation in circumstances where it has been determined that reinstatement is not appropriate:

Submissions

Mr Renton

[5] Mr Renton submits that he has been employed by Bendigo Health for approximately 17 years and 8 months. He says that his employment has been without incident prior to this matter and he has an unblemished record. Further, he says that he would have remained at Bendigo Health for the remainder of his employment. He says that this would be for a further period of 27 years (until retirement at age 67).

[6] On this basis he says that the remuneration he would have received had his employment not been terminated would been in excess of $1.5 million plus superannuation and anticipated long service leave.

[7] Mr Renton has worked for Bendigo Health Psychiatric Services since 2008. He has no experience in general or aged care nursing. He does not have medication endorsement.

[8] Mr Renton has investigated the costs of obtaining a medication endorsement but says it would cost $2,800 and require his travel to Melbourne one day per week for 28 weeks. To complete such studies in Bendigo, Mr Renton would have to undertake a Diploma of Nursing which would require two years’ full-time study and cost around $20,000.

[9] Mr Renton says that he has taken reasonable steps to mitigate his losses. In addition to enquiries he had made to Heathcote Health and Mercy Health Care at the time of hearing, he has made enquiries at three more health providers in the Bendigo area since that time but says they only employ medication endorsed Enrolled Nurses. He has also sought positions through Seek.com.au and by perusing the local newspaper without success.

[10] Mr Renton has received no remuneration since the time he was dismissed.

[11] Since his dismissal Mr Renton says he has had to rely on his termination payout to assist in meeting living expenses and his wife has had to increase her hours from part-time to full-time hours.

[12] Mr Renton accepts that the Commission has found that his misconduct contributed to his dismissal. However, in relation to the language used to describe his manager, 3 Mr Renton says that the Commission should take into account that the comments were made in the heat of the moment when he was feeling angry and upset about being dismissed after nearly 18 years of service.

Bendigo Health

[13] Bendigo Health submits that the amount of remuneration that Mr Renton would have received if his employment had not been terminated is referable to the entire circumstances, including the basis on which the termination was deemed to be unfair. 4

[14] Bendigo Health submits that the weight of findings in Renton militates against the award of any compensation to Mr Renton. It submits that, in light of those findings about the seriousness of Mr Renton’s conduct both prior to and following his dismissal, his on-going lack of insight and lack of judgement, Mr Renton’s employment would not have continued beyond the four week period for which he was paid notice.

[15] Bendigo Health says that the Commission must be satisfied that Mr Renton would only have remained in employment for “so long as it was necessary to terminate his employment in a procedurally fair manner”.

[16] Bendigo Health submits that Mr Renton has failed to properly mitigate his loss following his dismissal. At the time of hearing Mr Renton agreed that there were a number of health care providers in the Bendigo area that he had not approached. That he had approached three of these providers since the hearing it says is of little import.

[17] Given the impact of the dismissal on his family finances, Bendigo Health says that it would have been reasonable for Mr Renton to consider alternative employment to that of an Enrolled Nurse. It would have been reasonable for Mr Renton to consider roles such as personal care attendant.

[18] Bendigo Heath submits that it understands that Mr Renton maintains on his publicly available Facebook page an “occupation” which is not accurate with an “employer” that is a brothel. It submits that the maintenance of this information calls into question Mr Renton’s genuine attempts at mitigation.

[19] Bendigo Health submits that any compensation should be reduced to nil on the grounds that Mr Renton’s employment would have continued for no more than four weeks for which he has been paid and for his failure to mitigate his loss.

[20] Alternatively, it submits that, should the Commission determine some award of compensation it should be reduced by almost 100% on the grounds of Mr Renton’s conduct.

The approach to determining compensation

[21] The principles appropriate to the determination of compensation are well canvassed in decisions of the Commission. Those principles were established in Sprigg v Paul’s Licensed Festival Supermarket 5 (Sprigg) and refined in Ellawala v Australian Postal Corporation6. They are:

[22] In determining an amount of compensation, all of the circumstances, including the basis on which it was found that the dismissal was unfair, should be taken into account. 7

[23] I have applied these principles in reaching my decision.

Consideration

[24] I am satisfied that any order I may make for compensation will not have adverse consequences on the viability of Bendigo Health (s.392(2)(a)).

[25] Mr Renton had worked for Bendigo Health for a period of approximately 17 years and eight months (s.392(2)(b)) and I accept that in this period he has had an unblemished record.

Lost remuneration (ss.392(2)(c), (e) and (f))

[26] A set out in detail in Renton, Mr Renton’s employment was terminated because he posted a video on Facebook in which he “tagged” two of his work colleagues. The video was unsavoury and had sexual connotations. On the same day as posting the video Mr Renton left blobs of sorbolene cream on the desk of one of his colleagues tagged in the post, suggesting either his colleague or someone else had masturbated on the desk. In doing these things I found that Mr Renton exposed his colleagues to humiliation and ridicule at work. 8
[27] I made direct findings with respect to Mr Renton’s lack of insight into his actions:

[28] On 18 August 2016 Ms Lee McNally and Mr Tim Lenten met with Mr Renton. They advised him that they could recommend termination of employment or a warning. 9 Had Mr Renton’s employment not been terminated I am satisfied that he would have been subject to some disciplinary sanctions for his misconduct:

[29] Had he not been dismissed I am satisfied that Mr Renton would have continued at work but with little or no insight into his conduct and with a contemptuous attitude toward management.

[30] During the hearing of his unfair dismissal application, matters were raised with respect to Mr Renton’s conduct post his dismissal, including contacting his work colleagues when expressly directed not to and inappropriate comments made of his supervisor. These were appropriate matters to take into account in determining if Mr Renton should be reinstated. I consider that they are also relevant in the determination of lost remuneration. The conduct I found occurred post his dismissal has a direct bearing on Mr Renton’s attitude to his colleagues and management that are relevant to determining how long he would have remained in employment.

[31] I have therefore taken into account that, at the time Mr Renton was seeking relief from unfair dismissal including reinstatement, he showed a blatant disregard for a direction given to him by management of Bendigo Health that he not have any contact with his colleagues. Mr Renton did not dispute that he disregarded the direction given to him. 10

[32] I have also taken into account the views expressed by Mr Renton of Ms Natalie Hutchins, the Business Unit Manager of the unit in which Mr Renton worked at the time of his dismissal. At a time when he was seeking reinstatement Mr Renton referred to Ms Hutchins as “the red headed cunt” in a text message to Mr Frank Christie – one of the colleagues tagged in the video. I found that such a description was “derogatory, crass and unedifying” 11 and that it “demonstrates a contempt for management of Bendigo Health and is not an acceptable way to talk of a senior manager of his (past) employer”12 indicating “an on-going lack of judgement on his part.”13

[33] These matters, taken together, do not suggest that Mr Renton would have returned to the workplace with appropriate insight or contrition. The submissions of Mr Renton that, with disciplinary action he would have corrected his behaviour and there would have been no further instances of misconduct, is belied by his conduct following his dismissal and, therefore, must be rejected.

[34] It is not unreasonable to consider that, in seeking reinstatement, an employee dismissed from employment would be mindful of their exhibited their best behaviour in order to maximise the chances of reinstatement. Mr Renton did none of this. I have no confidence that Mr Renton, if not dismissed but subject to disciplinary action, would have anymore understood or appreciated the seriousness of his actions than I found and would not have sought some retaliation against those who had complained of his conduct. I therefore consider that his conduct would have been subject to further scrutiny by Bendigo Health and that this would lead, inevitably, to him leaving his employment, voluntarily or otherwise.

[35] Whilst I appreciate that, if his employment had not been terminated, the post termination conduct may not have occurred, the conduct that led to the decision to dismiss Mr Renton did occur and his post termination conduct is relevant to deciding how he would have conducted himself around those colleagues and management he considered integral to that decision to dismiss him. Further, it is relevant to considering his response to reasonable directions given to him.

[36] The assessment of lost remuneration is not a consideration of what would have occurred had the misconduct (which I found occurred) not occurred but if that misconduct (in this case) had not resulted in dismissal. The conduct did occur and is a relevant consideration.

[37] Had Mr Renton done no more than make the Facebook posts and put the sorbolene cream on Mr Christie’s desk, I may well have reached a different decision. It is his other actions – all taken whilst he was seeking reinstatement into the workplace that raise serious questions as to his attitude to his colleagues and management and must therefore have some bearing on how long he might otherwise remain in employment.

[38] Whilst I acknowledge Mr Renton has no history of misconduct, this is, in my view, far outweighed by the attitude displayed by him in relation to the incidents leading to his dismissal and following his dismissal.

[39] For these reasons, I have concluded that Mr Renton would only have remained in employment with Bendigo Health for a further four months (17 weeks).

[40] Mr Renton’s remuneration for the 2015/2016 financial year was $57,568 plus superannuation ($1,107.08 per week). Had his employment not been terminated when it was he would have earned $18,820.36 plus superannuation for the following 17 weeks.

[41] Mr Renton has not earned any income since the date of his dismissal on 19 August 2016 (s.392(2)(e)) although I note that he was paid four weeks’ notice. The amount of lost remuneration will be reduced by the amount of notice paid.

[42] A deduction for contingencies is in relation to future matters. It is close to six months since Mr Renton’s employment was terminated and there is no evidence that he was ill during this period or would have been otherwise unable to work. I have found that he would only have been employed for a further four months. I have therefore not reduced the resulting amount for contingencies.

[43] I am therefore satisfied that the remuneration Mr Renton would have been likely to receive had his employment not been terminated is $14,392.04 plus superannuation.

[44] I do not consider that Mr Renton will earn any income between my order arising out of this decision and the payment of any compensation I may order. No adjustment is made for this purpose.

Mitigation (s.392(2)(d))

[45] Mr Renton has not gained employment since he was dismissed by Bendigo Health.

[46] Mitigation refers to those positive steps a person may have taken to minimise the adverse consequences of the dismissal.

[47] Mr Renton is a Psychiatric Enrolled Nurse (PEN). He does not have a medication endorsement which means he cannot administer medications.

[48] Mr Renton’s employment was terminated on 19 August 2016. His application for unfair dismissal was heard by the Commission on 6 and 7 December 2016. Mr Renton’s evidence at the time of the hearing was that:

[49] Mr Renton gave evidence that he had approached “Bethlehem”, and “Heathcote” about jobs as an Enrolled Nurse. He did not approach at least eight aged care or medical facilities 15 in and around Bendigo as he does not have medication endorsement necessary.

[50] Mr Renton submits that he has made attempts to mitigate his loss but these have not been successful.

[51] Bendigo Health submits that he has done little to mitigate his loss.

[52] The responsibilities and obligations on a person dismissed to mitigate loss was considered in Biviano v Suji Kim Collection 16 (Biviano) where the Full Bench of the Australian Industrial Relations Commission, following a wide ranging consideration of decided cases, found:

[53] These principles were appropriately applied in the decision in Simpson v KAP Motors Pty Ltd T/A Kerry’s Automotive Group 17 (Simpson) in which I found that the award of compensation should be reduced because the applicant in that matter had failed to seek out work she could do, even where that work was not of the same kind as that work she had done with her previous employer. Whilst the applicant in Simpson had an injury that meant she could not perform the same work she had performed with her previous employer18 there was no reason she could not seek other work.

[54] In this case I am not convinced Mr Renton has taken reasonable steps to mitigate his loss. At the time of hearing, nearly four months after his dismissal he had done little to find alternative employment. Even though he believed, at that time, that he would have difficulty gaining employment without medical endorsement, Mr Renton has done nothing to obtain such endorsement.

[55] Now, some six months after his dismissal, in the knowledge that he would not be reinstated to Bendigo Health 19 and knowing that medical endorsement would enhance his chances of gaining employment as an Enrolled Nurse, Mr Renton has done nothing either to gain such endorsement or to set his sights on some alternative employment, even if it is, for a time, not as an Enrolled Nurse.

[56] Mr Renton seems to be of the view that the only thing he needs to do to demonstrate mitigation is to look for jobs equivalent to the one he previously held. Having found this may be difficult, he has done nothing to seek other employment. That is, he has not made any effort to mitigate his loss.

[57] For this reason, I do not consider that Mr Renton has made a reasonable effort to mitigate his loss.

[58] I have therefore applied a discount of 30% to his lost remuneration.

[59] There are no other matters I consider relevant (s.392(2)(g)).

Reduction for misconduct (s.392(3))

[60] I am satisfied that Mr Renton’s misconduct contributed to the decision by Bendigo Health to dismiss him from his employment. Further, I am satisfied that I should, for this reason, further discount any compensation payable to him.

[61] I have taken into account a substantial number of adverse findings I made against Mr Renton. These include that:

[62] I also found that Mr Renton exposed his colleagues to humiliation and potential ridicule at work, 20 that he did not display an appropriate standard of conduct in his dealings with his colleagues or his employer21 and that his conduct provided a valid reason for his dismissal. Whilst I ultimately found that Mr Renton’s dismissal was harsh, this was on “fine balance”.

[63] I also found that Mr Renton had engaged in a “long history of playing ‘pranks’ and practical jokes on Mr Christie. He saw this incident as just an extension of those. Bendigo Health has grounds to have lost confidence in Mr Renton that he will not continue with such conduct” 22.

[64] These findings warrant a substantial discount on any compensation. Mr Renton’s conduct was the reason for the decision of Bendigo Health to terminate his employment. I have not set aside any of its findings.

[65] I have seriously considered these matters and have decided that the amount of compensation should be reduced by a further 80% because Mr Renton’s misconduct contributed to the reason for dismissal.

Conclusion

[66] I have therefore decided to award Mr Renton an amount of compensation of $2,014.89 plus superannuation. This amount does not include any amount for humiliation and distress and does not exceed the high income threshold.

[67] I am satisfied in all of the circumstances that this is a reasonable amount.

[68] An order 23 requiring payment of this amount within 14 days of the date of the order will be issued with this decision.

Seal of the Fair Work Commission with member's signtaure.

COMMISSIONER

Final written submissions:

Applicant: 20 January 2017.

Respondent: 3 February 2017.

 1   [2016] FWC 9089.

 2   Ibid at [143].

 3   [2016] FWC 9089 at [47].

 4   Brett Haigh v Bradken Resources Pty Ltd T/A Bradken [2014] FWCFB 236 at [12].

 5   Print R0235.

 6   Print S5109.

 7   Brett Haigh v Bradken Resources Pty Ltd T/A Bradken [2014] FWCFB 236 at [12].

 8   Michael Renton v Bendigo Health Care Group [2016] FWC 9089 at [117].

 9   Ibid at [54].

 10   Ibid at [34] and [36].

 11   Ibid at [153].

 12   Ibid at [135].

 13   Ibid.

 14   Exhibit A1, paragraph 18.

 15   St John of God, Bendigo Day Surgery, Freedom Aged Care, BUPA Aged Care, Bentleys Aged Care, Stella Anderson Nursing Home, Baptcare Loddon Mallee, Victoria Heights Nursing Home, and Uniting AgeWell Nursing Home. See transcript PN517-36.

 16   PR915963.

 17   [2016] FWC 5019.

 18   Ibid at [47].

 19   Michael Renton v Bendigo Health Care Group [2016] FWC 9089 at [151].

 20   Ibid at [117].

 21   Ibid at [119].

 22   Ibid at [154].

 23   PR590381.

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