[2018] FWC 4150 [Note: An appeal pursuant to s.604 (C2018/4330) was lodged against this decision.] - refer to Full Bench decision dated 17 October 2018 [[2018] FWCFB 6449] for result of appeal.]


Fair Work Act 2009

s.394—Unfair dismissal

Gregory Gibbens
The Commonwealth of Australia (Department of Home Affairs)


PERTH, 16 JULY 2018

Termination of employment.

[1] This decision concerns an unfair dismissal remedy application made by Mr Gregory Gibbens (Mr Gibbens or the Applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent is The Commonwealth of Australia (Department of Home Affairs) (the Department or the Respondent).

[2] This application was filed by Mr Gibbens in November 2016 and was originally listed for a jurisdictional hearing on 15 February 2017 to determine the Respondent’s objection that the Applicant was not dismissed.

[3] On 27 January 2017 the Respondent filed an amended response conceding that the Respondent had dismissed the Applicant on 28 October 2016.

[4] The hearing of the merits of Mr Gibbens’ application was however not held until 6 June 2018.

[5] The lengthy delay in holding this hearing was a consequence of Mr Gibbens lodging an appeal 1 concerning the name of the Respondent and the Respondent being represented by the Australian Government Solicitor, making two recusal applications one of which was not pursued and one of which was the subject of a decision2 by myself and because of his personal circumstances.


[6] Mr Gibbens was a non-ongoing employee of the Respondent engaged for duties that were irregular or intermittent at the Perth Airport.

[7] On 28 October 2016 Mr Gibbens was notified in writing by Mr Rod O’Donnell (Mr O’Donnell), the Regional Commander WA Australian Border Force, that he would no longer be offered further work by the Respondent.

[8] The letter explained the reason for this was a series of incidents involving individual passengers which were described as Mr Gibbens behaving in a disrespectful and discourteous way which was judged to be unacceptable. The letter says that Mr Gibbens had been spoken to after each incident however the fact that the incidents continued to occur indicated that he could not, or would not, heed the significance of the complaints, the seriousness with which those complaints were viewed by his Supervisors or moderate his behaviour accordingly.

[9] The letter said that in the circumstances Mr O’Donnell was left with no confidence that if Mr Gibbens worked again he would not engage in disrespectful and discourteous conduct towards passengers.

Evidence and factual findings

[10] At the hearing of this matter Mr Gibbens gave evidence and as ordered by the Commission, at the Applicant’s request, evidence was also given by Mr O’Donnell, the Regional Commander WA Australian Border Force and Ms Emma Newman (Ms Newman), the Superintendent at Perth Airport.

[11] In his oral evidence under cross-examination Mr Gibbens was at times evasive and appeared to be resisting giving full and truthful answers to some questions. 3 In other instances, see [23] to [24] below, his answers to some questions damaged his credibility as a witness.

[12] In contrast Ms Newman and Mr O’Donnell were credible witnesses. To the extent that their evidence is at odds with the evidence of Mr Gibbens I prefer the evidence of Ms Newman and Mr O’Donnell.

[13] The evidence is that Mr Gibbens was first employed by the Respondent in 2006. When he worked from time to time he did so at the Perth Airport.

[14] Mr Gibbens’ duties commonly involved processing aviation passengers both inwards and outwards, directing queue management of passengers, assisting E Gate departures and processing Tourist Refund Scheme claims.

[15] The Applicant says he is bilingual and holds four Certificate IV qualifications and eight post-secondary qualifications, ranging from VET Diplomas to a Bachelor degree, a Masters degree and a second Post Graduate qualification. His evidence is that he is currently completing his second Masters degree. Mr Gibbens’ evidence is that academically he has no peer in the Respondent’s Department in Western Australia.

[16] The incidents involving Mr Gibbens that caused him to be dismissed can be summarised as follows,

1. On 19 January 2015 Mr Gibbens was approached by a female passenger who moments before held her passport in her mouth. Mr Gibbens took the passport and wiped it on the sleeve of her shirt.

2. On 27 July 2015 a complaint was made to the Respondent that Mr Gibbens was on 19 July 2015 discourteous, unprofessional and rude to a passenger by speaking in a loud and abrupt voice, not looking at the passenger when speaking to her and rolling his eyes and sighing.

3. On 9 November 2015 a complaint was made that Mr Gibbens said to a passenger travelling to Denpasar, words to the effect of “you’re brave flying with Air Asia” and that Air Asia “don’t know the difference between a normal cloud and an ash cloud, the plane hits the ash cloud and it gets into the engines and down it goes, diving into the sea” while making a nose dive expression with his hands. The passenger then advised Mr Gibbens she needed a valium and he said words to the effect of “take the whole bottle.” The passenger reported to the Respondent she was distressed and anxious about his remarks.

4. On 3 August 2016 a complaint was made to the Respondent that while processing a passenger’s refund claim Mr Gibbens made a comment to the effect that the passenger “had probably done this many times”. The passenger felt that this assumption was made on the basis of her Chinese race and nationality.

[17] After each of these incidents Mr Gibbens was asked by the Respondent to provide his explanation of what occurred.

19 January 2015 incident

[18] Mr Gibbens provided his response regarding this incident to the Respondent by email on 21 January 2015 having viewed the video footage. In his response he initially agrees that the appearance is not acceptable and in hindsight he should have dealt with the saliva on the passport differently.

[19] He says this all occurred in a light-hearted manner.

[20] He said it was not his intention to offend or make passengers feel uncomfortable but conceded that in making light of the situation he overstepped the mark.

[21] At the hearing the video of this incident was tendered into evidence. 4

[22] Under cross-examination Mr Gibbens agreed the video was of the primary line at the Perth Airport.

[23] Mr Gibbens rightly pointed out that the video does not show the identity of the Officer who wipes the passenger’s passport on her sleeve. Only a small portion of the Officer’s head can be seen. Notwithstanding that shortly after the incident occurred in 2015 when he was asked for his explanation of the incident Mr Gibbens readily agreed that he had dealt with the passenger by wiping her passport on her sleeve, at the hearing he repeatedly refused to acknowledge that he was the Officer doing this in the video of this incident. 5

[24] However later in his evidence when Mr Gibbens wished to make the point that the wiping of the passport on the passenger’s shirt was done on a light-hearted manner he clearly by implication acknowledged that he was the Officer shown in the video. 6

[25] Mr Gibbens’ repeated reluctance to acknowledge he was the Officer shown in the video but later accepting he was when it suited his purposes, significantly damaged his credibility as a witness.

[26] I find that the video shows the incident that occurred on 19 January 2015. The video shows a female passenger at some distance in a queue of passengers approaching the counters manned by the Respondent’s Officers. As she is walking forward the passenger momentarily places the passport in her mouth as she arranges her two bags. She waits for other passengers to be processed and then approaches Mr Gibbens’ counter where she places her passport on the counter. Mr Gibbens motions with his right hand for her to move close to the counter then picks her passport up, leans forward over the counter and wipes it on her upper sleeve. The passenger looks down at her sleeve as he does this in surprise.

19 July 2015 incident

[27] This incident involved a complaint to the Respondent made by one of Mr Gibbens’ senior colleagues, Ms Newman, who was returning to Perth having travelled in a private capacity and presented as a passenger in front of Mr Gibbens at the primary line at the Airport. At this point Mr Gibbens says he was unaware of her identity. Her complaint was that he spoke to her in a loud voice without looking her in the eye in a tone which inferred she was stupid and rolled his eyes. She then asked whether he wished for the Respondent’s Duty Manager to come over and observe the transaction, because as a colleague of Mr Gibbens she was aware of the requirements in relation to integrity in such a situation. When she asked this Mr Gibbens asked why, in a tone which was loaded she said with sarcasm and hostility. It was only when she then advised him that this was because she was his Superintendent did his behaviour change.

[28] On 7 August 2015 by email Mr Gibbens provided his response to this complaint by email.

[29] He said Ms Newman did not identify herself as an Officer of the Respondent nor at any time tell him she was his Superintendent.

[30] He agrees he did ask Ms Newman and other passengers who appeared to be with her to stay together but the other passengers did not heed him.

[31] Mr Gibbens denied he used a tone that inferred Ms Newman was stupid or was loaded with sarcasm and hostility or that he rolled his eyes or sighed.

[32] In part Mr Gibbens response was as follows,

I have never seen Ms Newman in her role as the senior officer at Perth Airport, other than at a distance through 2 glass panes, earlier this week when colleagues pointed her out as we were leaving. I could not even identify her if I came across her in public. We have never met or been introduced. Other than it seems in processing on 19th July.

I reiterate, Ms Newman did not identify herself as my superintendent, nor should she, when being processed as a member of the public.

I realise that I am a lowly CFE and Ms Newman is a senior officer. There is a great deal of imbalance in power in this complaint and I find it disturbing in its content and how it has been dealt with.”

[33] At the hearing Ms Newman gave evidence regarding the incident with Mr Gibbens on 19 July 2015. 7

[34] I accept her evidence in full and prefer it to the extent that it differs from the evidence of Mr Gibbens regarding their interaction.

[35] I accept Ms Newman made her complaint in a private capacity and there is no evidence to support the suggestion from Mr Gibbens that she was on 19 July 2015 in some way seeking to “leverage” her position.

[36] Significantly I accept Ms Newman’s evidence that she did, not at the outset, but towards the end of their interaction identify herself to Mr Gibbens as his Superintendent after suggesting the Duty Manager come over to witness her being processed by Mr Gibbens.

[37] Consequently I find that the response Mr Gibbens made in writing on 7 August 2015 to Ms Newman’s complaint wherein he said she did not at any time identify herself as his Superintendent was not correct.

[38] I find that as Ms Newman said in her complaint, Mr Gibbens’ behaviour when processing her was discourteous, unprofessional and rude.

9 November 2015 incident

[39] Mr Gibbens provided a written statement regarding this incident to Ms Claire Smith (Ms Smith) of the Respondent.

[40] In this statement Mr Gibbens says he did not have a recollection of this particular passenger. He did however recall that at the time two airlines were not taking passengers to Denpasar due to reports of volcanic ash.

[41] Mr Gibbens made some general comments as to how he tries to be friendly with passengers, and if he can he would “...say anything to disarm or relax a situation I do as it makes the whole process easier for both them and ourselves.”

[42] He states that on this occasion there may have been some comment about the ash cloud but not in the terms the passenger describes.

[43] He states he does not recall what particular dialogue was had with this passenger.

[44] Mr Gibbens continues by expressing concerns as to how the passenger knows his surname with its particular spelling.

[45] He then makes comments about the passenger he says he obtained from public domain information he has apparently researched.

[46] He then speculates that there may be a connection between the passenger and an ex-family member whom has subjected him to abuse in the past.

[47] Mr Gibbens also states that another employee of the Respondent, who was mentioned in the passenger’s complaint as having positively assisted the passenger when they were upset, has in the past “...had a dalliance with the wife of a good colleague that led to the breakup of that family.

[48] On 27 November 2015 Ms Smith the Respondent’s Acting Inspector Traveller Operations, sent the following email to Mr Gibbens regarding a meeting they had had that morning. 8

Could you please confirm, by responding to this email, that the following points were discussed:

•Acknowledgement was made that in your Statement you quoted that –

o you try to be friendly with passengers

o your intention is not to cause angst

•Although you do not have a recollection of this particular passenger or the dialogue that was had, the passenger was clearly upset as a result of your conversation.

•You were reminded to conduct your duties in a professional manner and to be more aware of how the words you say and the actions you take can be perceived by the travelling public, especially during the ash cloud scenario when passengers may be experiencing a heightened level of anxiety.

•You expressed that you wished the situation had been raised with you at the time and been given the opportunity to apologise to the passenger.

•During the conversation you confirmed the additional information you sought in regards to the passenger was not obtained from any ABF internal systems but via open source.

If you would like to add any further comments or disagree with any of the above please let me know.”

[49] No response to this email was received from Mr Gibbens.

[50] Under cross examination Mr Gibbens said he did not say what the email says he did, 9 although his written statement provided to Ms Smith and oral evidence are consistent with the majority of Ms Smith’s email.

[51] Ms Smith’s email says he told her he wished he had been given an opportunity at the time to apologise to the passenger. Mr Gibbens under cross-examination however said he had not said to Ms Smith he wished he could have apologised to the passenger. 10 His evidence was as follows,

Yes? --- And I did express to her that it was a pity that if there was a situation with this particular person that it wasn't brought to my attention while I was there so I could sort it out with her. That's not the same as saying I wish I could have apologised to her. It's common practice for us, sometimes people get upset with our processing - - -

All right? --- - - - and that's - I haven't finished yet - and that happens because of the work we do.

Of course? --- And if we can sort it out on the spot, we sort it out on the spot.”

[52] Mr Gibbens did not contest that Ms Smith had reminded him to undertake his duties in a professional manner and to be more aware of how the words he said and his actions can be perceived by the travelling public.

3 August 2016 incident

[53] The specifics of this complaint are contained in Mr Gibbens’ materials 11 at Annexure M as is his response.

[54] The complaint referred to an interaction between a passenger and Mr Gibbens. The passenger was seeking a refund under the Tourist Refund Scheme. Mr Gibbens whilst considering the claim, according to the complainant’s husband, flipped through his wife’s passport and noticing she had been well travelled said impatiently and suspiciously “You do not need to explain further, you probably have done this many times.” and proceeded to stamp a reject on her receipts, denying the claim.

[55] The complainant apologised for any fault on their part in making the claim but stated he would not stand for the comment made to his wife that just because she is Chinese and holds a Chinese passport “...she probably have done this many times” . The complainant referred to Mr Gibbens’ actions as “...truly disgusting and if I may, borderline racist.”

[56] Mr Gibbens’ response to the complaint about this incident was provided to the Respondent’s Mr Dominic Sullivan. 12

[57] Mr Gibbens’ response begins by advising that the complainant’s action in putting his thoughts in writing and publishing that Mr Gibbens may be racist met the test for defamation and Mr Gibbens refers to the Defamation Act 2005.

[58] Mr Gibbens points out the complainant was not present and therefore his statement is hearsay. He says the complainant puts himself at very real risk of civil action.

[59] Mr Gibbens says the complaint, that he conducted himself in a racist manner, is entirely without foundation.

[60] Mr Gibbens then continues by explaining in detail the process for dealing with Tourist Refund Scheme claims and how he processed this claim.

[61] In his response to the Respondent Mr Gibbens does not address the substance of the complaint specifically being what he said to the passenger and the manner in which he said it. 13

[62] Considering the evidence regarding each of the incidents and Mr Gibbens’ responses to each complaint, being that given to the Respondent around the time of the incident, and that given his statement in these proceedings and oral evidence I am satisfied on the balance of probabilities with regard to each incident that the complainant had good reason for their complaint and Mr Gibbens’ behaviour towards the individual passengers was, on each occasion, disrespectful and inappropriate.

[63] It is not disputed that over his lengthy period of employment’s Mr Gibbens has received a number of complimentary responses from passengers. 14

[64] Following the last incident, on 28 August 2016, Ms Newman, wrote to Mr Gibbens. That letter identified the four incidents detailed above and under a heading “Opportunity to comment” stated that Mr Gibbens’ pattern of behaviour in those incidents has caused the Respondent to lose trust and confidence in him. The letter stated the Respondent believes these incidents demonstrate he is unable to interact appropriately and respectfully with the public. The letter stated that the Respondent wished to give him notice that it was considering ceasing to offer him shifts and it provided him with seven days to show cause as to why the Respondent should not cease to offer him shifts.

[65] Mr Gibbens subsequently requested a further seven days to respond and the Respondent agreed to allow him until 11 September 2016 to provide his response to this letter.

[66] On 10 September 2016 Mr Gibbens provided a 15 page letter in response to Ms Newman’s letter. Mr Gibbens’ letter was also addressed to the Secretary of the Department and to Mr O’Donnell and in addition was copied to Mr J. Wilson MP Member for Fremantle and the Community and Public Service Union. The letter was headed “Without Prejudice”.

[67] In response on 15 September 2016 Ms Newman advised Mr Gibbens by letter that because she was the complainant with respect to the incident on 28 July 2015 she would have no further involvement in the matter in order to provide him with procedural fairness. The letter advised that Mr O’Donnell would act as the decision-maker.

[68] On 23 September 2016 Mr O’Donnell wrote to Mr Gibbens and referred to his response being marked “Without Prejudice” and pointed out that this generally refers to privileged that attaches to statements made in settlement negotiations which are generally then not admissible as evidence. The letter went on to say that accordingly he would not have regard to Mr Gibbens “Without Prejudice” response in making his decision. Mr O’Donnell asked Mr Gibbens to write to him by 28 September 2016 expressly indicating that he wished Mr O’Donnell to treat Mr Gibbens response as open correspondence. The letter then advised that if he did not do that the decision will be made on the basis of the information available not including Mr Gibbens “Without Prejudice” response.

[69] Mr Gibbens replied on 4 October 2016 writing one letter to the Respondent which was again marked as “Without Prejudice” but also a second letter which was not marked “Without Prejudice”. 15

[70] Neither letter addressed the incidents that the Respondent had raised with Mr Gibbens.

[71] The Respondent submits that Mr Gibbens again wrote on 6 October 2016 and finally on 16 October 2016 to the Respondent both letters being headed “Without Prejudice”.

[72] Mr O’Donnell’s response dated 28 October 2016 to Mr Gibbens told him that he would not be offered further work by the Respondent and went on to explain why that decision had been made.

[73] The letter traces the history of recent correspondence and which of that correspondence Mr O’Donnell had regard for and which, because it was “Without Prejudice”, he had not had regard for.

[74] With respect to Mr Gibbens’ letter of 4 October 2016 which was not marked “Without Prejudice” Mr O’Donnell said it did not squarely address the concerns about his behaviour listed in Ms Newman’s letter to him.

[75] Mr O’Donnell’s conclusion was that the series of incidents outlined in the letter to Mr Gibbens of 28 August 2016 all involve complaints that Mr Gibbens behaved in a disrespectful and discourteous way towards passengers. Mr O’Donnell said he viewed this behaviour as unacceptable and it was clear he had been spoken to after each incident however, the fact that the incidents continued to occur Mr O’Donnell said indicates that Mr Gibbens could not or would not heed the significance of the complaints, or the seriousness with which these complaints were viewed by his Supervisors nor would he moderate his behaviour accordingly.

[76] Mr O’Donnell concluded that he was left with no confidence that should further work be made available to Mr Gibbens he would not again engage in disrespectful and discourteous conduct towards passengers. As a result he said he did not trust Mr Gibbens to work for the Department anymore and will not offer further work to Mr Gibbens.

[77] Erroneously Mr O’Donnell then stated that he is not terminating Mr Gibbens’ employment because as an irregular and intermittent employee Mr Gibbens does not have a continuing employment relationship with the Department between engagements.

[78] Mr Gibbens’ evidence is he is a single parent with the sole responsibility for two daughters.

[79] The loss of his employment has deprived him of income with obvious negative consequences for Mr Gibbens and his daughters.

[80] Since Mr Gibbens’ dismissal the Respondent has become aware that Mr Gibbens official notebook has not been returned to the Respondent. The notebook issued to him contains personal details of members of the travelling public. The evidence is that notwithstanding the Respondent twice in writing requesting he return the notebook and other property of the Respondent Mr Gibbens has expressly refused to do so. 16


[81] Mr Gibbens has provided comprehensive submissions in support of his application. Mr Gibbens’ primary submission is that he should be reinstated to his former position with compensation.

[82] The Respondent has provided submissions to the effect that the termination of Mr Gibbens’ employment was not harsh, unjust or unreasonable and consequently his application should be dismissed.

[83] Section 387 of the Act provides for those matters the Commission must have regard for in deciding whether or not the dismissal of Mr Gibbens was unfair. The section is set out below.

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.”

Valid reason

[84] Over a period of 19 months the Respondent received four particularised complaints about Mr Gibbens’ behaviour towards passengers at the Perth Airport. Mr Gibbens’ behaviour towards the passengers was in each of the four instances disrespectful and inappropriate. Mr Gibbens’ behaviour towards these passengers was a valid reason for his dismissal.

Notification of the reason

[85] The letter from Ms Newman dated 28 August 2016 to Mr Gibbens notified him of the reasons the Respondent was considering ceasing to offer him shifts which amounted to terminating his employment.

Opportunity to respond

[86] Mr Gibbens around the time of each of the incidents was provided with an opportunity to explain what had occurred and prior to his dismissal was provided with an opportunity to respond to the reasons the Respondent was considering dismissing him. Indeed Mr Gibbens took up this opportunity and provided written responses to Ms Newman’s letter of 28 August 2016.

Refusal to have a support person present

[87] There was no such refusal by the Respondent.

Unsatisfactory performance warnings

[88] Mr Gibbens’ dismissal was not related to unsatisfactory performance but rather because of his inappropriate behaviour.

Size of the employer’s enterprise and absence of dedicated Human Resource Management specialists or expertise

[89] The Respondent is a large enterprise and has access to dedicated Human Resource Management Specialists and expertise. Whilst superficially the Respondent’s procedure in this matter was appropriate the lack of appreciation that ceasing to offer Mr Gibbens shifts would equate to a termination of his employment may have resulted in a less rigorous procedure being followed by the Respondent than might have occurred if the Respondent had recognised its actions would amount to terminating Mr Gibbens’ employment.

Other relevant matters

[90] The evidence is that at no stage did the Respondent specifically warn Mr Gibbens that further instances of disrespectful and inappropriate behaviour when dealing with passengers could result in his employment being terminated.

[91] Mr Gibbens had been employed since 2006 by the Respondent. Whilst over that time he did receive compliments on occasions from passengers that does not in some way cancel out his inappropriate behaviour towards other passengers.

[92] Other than in regard to the 19 January 2015 incident, neither in his response to the Respondent’s enquiries of him shortly after each incident nor at any time since has Mr Gibbens genuinely acknowledged he has behaved in a disrespectful and inappropriate manner towards passengers. Nor has he at any time demonstrated any genuine remorse for his bad behaviour towards them. Rather his response to the complaints has commonly involved serious personal criticisms of the complainants. These responses by Mr Gibbens reinforce the legitimacy of the Respondent’s concern that he is either unwilling to or unable to improve his behaviour.

[93] Since his dismissal Mr Gibbens has refused to return to the Respondent the Respondent’s property notwithstanding twice having being requested to do so.


[94] In the circumstances Mr Gibbens should have been expressly warned at some point that further instances of disrespectful and inappropriate behaviour towards passengers would be likely to result in the Respondent terminating his employment. I am satisfied that the absence of such a warning coupled with his relatively lengthy service means the dismissal of Mr Gibbens was unjust. For these reasons Mr Gibbens was unfairly dismissed.


[95] In this case Mr Gibbens’ primary submission is that he be reinstated and compensated.

[96] Mr Gibbens has not demonstrated any remorse for his at times disrespectful and inappropriate behaviour towards passengers. Indeed in his responses to the Respondent in some cases he has aggressively criticised those passengers who have complained about him. Separately Mr Gibbens, since the time of his dismissal, has deliberately refused requests to return to the Respondent some of its property.

[97] In the circumstances I am satisfied that reinstatement of Mr Gibbens is inappropriate.


[98] The effect of an order for compensation on the viability of the Respondent would be negligible.

[99] I note Mr Gibbens had been employed for approximately 10 years at the time of his dismissal.

[100] There is no doubt the Respondent was dissatisfied with how Mr Gibbens behaved on occasions towards passengers. Considering all of the evidence if Mr Gibbens was not dismissed when he was it is unlikely he would have remained in employment for a particularly long period even if he had been given a formal warning, given his record of four complaints from passengers in the previous 20 months and his unwillingness to accept he had behaved inappropriately in any serious way. Considering this I have reached the conclusion that Mr Gibbens would have continued in employment if he had not been dismissed for 12 weeks. Remuneration for this period is what he would have been likely to receive if he had not been dismissed.

[101] There is no evidence as to what efforts Mr Gibbens has made to mitigate his loss since his dismissal.

[102] There is no evidence that Mr Gibbens has earned any remuneration from employment since his dismissal.

[103] I am satisfied that Mr Gibbens’ misconduct, behaving inappropriately at times towards passengers, directly contributed to the Respondent’s decision to dismiss him. Consequently it is appropriate to reduce the amount I would otherwise order in the circumstances of this case by 50% .

[104] Consequently an amount of six weeks’ compensation will be ordered to be paid to Mr Gibbens plus an amount of superannuation calculated on the basis of the rate he was entitled to which was 15.4%.

[105] The evidence is Mr Gibbens on average earnt $762.34 per week gross. The six weeks compensation therefore totals $4,574.04 gross. The superannuation amount would then be $704.40.

[106] An order [PR608982] reflecting the payment of these amounts, to be paid within 21 days, will be issued in conjunction with this decision.



G Gibbens on his own behalf.

V Masters of the Australian Government Solicitor for the Respondent.

Hearing details:



June 6.

Printed by authority of the Commonwealth Government Printer


 1   [2017] FWCFB 2812.

 2   [2017] FWC 6245.

 3   Transcript of 6 June 2018 at PN1377 to PN1394.

 4   Exhibit R2.

 5   Transcript of 6 June 2018 at PN971, PN983, PN986, PN992 and PN1003.

 6   Ibid., at PN1405 to PN1408.

 7   Ibid., at PN483 to PN505.

 8   Ibid., at PN1172.

 9   Ibid., at PN1174.

 10   Ibid., at PN1178 to PN1180.

 11   Exhibit A2.

 12   Ibid., at Annexure M pages 3 to 4 and Transcript of 6 June 2018 at PN1242 to PN1243.

 13   Transcript of 6 June 2018 at PN1251 to PN1253.

 14   Exhibit A2 at Annexure P.

 15   Ibid., at Annexure R.

 16   Transcript of 6 June 2018 at PN1284 to PN1318.