| [2019] FWC 1832 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Giuseppe Trigilia
v
Di Carlo Civil Construction Pty Ltd atf Di Carlo Drainage Trust
(U2018/12427)
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 21 MARCH 2019 |
Application for an unfair dismissal remedy.
[1] Mr Giuseppe Trigilia has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, having been dismissed from his employment. Mr Trigilia named Di Carlo Drainage P/L as the Respondent in his Form F2 – Unfair dismissal application (Form F2) and seeks compensation in lieu of reinstatement.
[2] A Form F3 – Employer response to unfair dismissal application (Form F3) was filed on 10 December 2018 by Di Carlo Civil Construction Pty Ltd, asserting Mr Trigilia’s employment was terminated on the grounds of serious misconduct warranting instant dismissal. Mr Robert Di Carlo was listed as the contact person in the Form F3 and his contact details, including a mobile phone number, were provided.
[3] The conciliation listed on 4 January 2019 could not proceed as no person appeared for the Respondent. When no response was received from the Respondent to the Commission’s letter dated 4 January 2019 inviting the parties to request another conciliation, Directions were issued on 11 January 2019 requiring the parties to file material ahead of the listed Arbitration Conference/Hearing.
[4] In compliance with the Directions, Mr Trigilia filed his material on 23 January 2019, followed by some additional material on 30 January 2019.
[5] There was no material filed on behalf of the Respondent. It was due by no later than noon on 25 February 2019. As such, other than the Form F3, the Commission has not received any other material on behalf of the Respondent.
[6] On 28 February 2019, I conducted a Mention hearing via telephone. Mr Trigilia attended. Despite the Notice of Listing having been sent to the email address outlined in the Form F3 and a number of attempts to contact Mr Di Carlo at the time of the Mention, there was no one in attendance for the Respondent.
[7] In addition, there was no one in attendance for the Respondent at a Conciliation listed before Commissioner Cirkovic on 8 March 2019 and therefore, it could not proceed.
[8] While Mr Trigilia named “Di Carlo Drainage P/L” with the Australian Business Number (ABN) of 32 759 138 659 as the Respondent in his Form F2, the Form F3 records the Respondent as “Di Carlo Civil Construction pty ltd,” albeit with the same ABN.
[9] A review of the ABN 32 759 138 659 on ABN Lookup revealed that the entity name is “The Trustee for Di Carlo Drainage Trust”. Further, Mr Trigilia submitted a payslip dated 23 November 2018, which indicated that he was paid by “Di Carlo Civil Construction Pty Ltd atf Di Carlo Drainage Trust ABN 32 759 138 659”.
[10] I have therefore determined that I should amend the application for unfair dismissal remedy made by Mr Trigilia so as to record “Di Carlo Civil Construction Pty Ltd atf Di Carlo Drainage Trust” as the Respondent and I consider my doing so comes within the circumstances in which it has been held this is possible pursuant to s.586 of the Act. 1
[11] The Arbitration Conference/Hearing was listed for 14 March 2019 before me.
[12] Mr Trigilia attended and gave evidence in support of his unfair dismissal application. There was no one in attendance Di Carlo Civil Construction Pty Ltd atf Di Carlo Drainage Trust (DCCC). This was despite the Notice of Listing having been sent to the email and postal addresses outlined in the Form F3 on both 11 January 2019 and 21 February 2019. Additionally, two attempts were made to contact Mr Di Carlo by telephone phone on the morning of the Arbitration Conference/Hearing and the matter was announced at the Commission at the appointed time.
[13] I therefore had no option but to proceed in the absence of a representative for DCCC. At the outset I considered the requirements of s.399(1) of the Act and determined that it would be appropriate for the matter to be dealt with by way of determinative conference, following discussion with Mr Trigilia and having formed the view that this would be the most effective and efficient way to resolve the matter.
[14] Mr Trigilia says that he commenced employment with DCCC in 2012 as a full time labourer. DCCC stated in its Form F3 that Mr Trigilia commenced on 3 July 2012. On this basis, Mr Trigilia’s employment with DCCC exceeded five years when he was notified of his termination on 27 November 2018.
[15] A termination letter dated 27 November 2018 addressed to Mr Trigilia stated:
“During a company toolbox meeting, you verbally threatened the Managing Director on multiple occasions. This verbal attack not only constitutes your third, and final warning, but due to the nature of the threats, results in an instant dismissal on the grounds of serious misconduct.
Di Carlo Civil Construction encourages its employees to contribute any items, concerns, or issues with management, however it is company expectation that all employees conduct themselves in a professional manner and treat others with dignity and respect as documented in our Workplace Bullying Policy. Your behaviour and conduct was unacceptable and cannot be tolerated under any circumstances.
Given there is no acceptable explanation for your actions, we have completely lost confidence that an alternate solution could be met moving forward and termination of your employment due to serious misconduct is to take effect immediately.”
[16] The termination letter was signed by Mr Di Carlo, Managing Director for DCCC.
[17] At the determinative conference, Mr Trigilia gave evidence that the company toolbox meeting referred to in the termination letter took place on 27 November 2018. He said the meeting was called by DCCC.
[18] Mr Trigilia stated that Mr Bruce Keys was introduced and proceeded to state that workplace morale was low. Mr Trigilia said that when he asked Mr Keys why he thought morale was low, Mr Keys replied by stating that he (Mr Trigilia) was “negative”, that he was on his final warning and that he should “fuck off”.
[19] Mr Trigilia also said that following these remarks of Mr Keys, Mr Di Carlo approached him, encroached into his personal space by “chesting” and eyeballing him, and told him to “fuck off”, that he was “gone” and that he was “finished”. Mr Trigilia said this shocked him and he said to Mr Di Carlo that he could not do this to him, before getting into his motor vehicle, leaving DCCC’s factory site and returning home. He said that there was no contact between him and Mr Di Carlo or Mr Bruce between the time he left the site and when he received the termination letter signed by Mr Di Carlo later that day.
[20] In the Form F3, DCCC asserted Mr Trigilia threatened both Mr Di Carlo and Mr Keys on multiple occasions and that due to the nature of the threats, the verbal attack on 27 November 2018 constituted his third and final warning and justified an instant dismissal on the grounds of serious misconduct. DCCC further asserted that Mr Trigilia was directed to leave the factory and was informed that his employment had been terminated. It asserted that Mr Trigilia refused to leave the premises until the police were called, and that following the encounter, Mr Di Carlo and Mr Keys made the decision to seek an intervention order. Mr Trigilia responded to these allegations and stated they were completely untrue. He denied engaging in threatening behaviour, claimed it was Mr Di Carlo who approached him, said he did not refuse to leave the DCCC premises and advised that he was never the subject of an intervention order.
[21] In addition to the allegations in the Form F3, DCCC attached three letters addressed to Mr Trigilia, one of which was the termination letter dated 27 November 2018, and the remaining two appeared to be two written warnings respectively dated 26 October 2016 and 13 March 2018. Both letters appear to have been signed by Mr Di Carlo. No further material was received from DCCC at any stage during the course of this matter.
[22] The first written warning letter dated 26 October 2016 stated:
“Warning letter
I am writing to you about your conduct during your employment with Di Carlo Civil Construction Pty Ltd (the employer).
On Wednesday 26th October 2016, you met with Robert Di Carlo (Managing Director) and Luke Sorokowski (Project Engineer). At this meeting you were advised that your conduct towards Robert Di Carlo on Monday 24th October 2016 was unacceptable. In particular, you were advised that whilst the company is happy for employees to raise issues and concerns, the manner in which you addressed Robert Di Carlo was disrespectful and demeaning in front of other employees.
In the meeting you were asked if you had anything you wished to say or to respond to the situation. You advised that you disagreed with this decision.
After considering the situation it is expected that your conduct improves and that these occurrences cease to continue.
This is your first warning letter. Your employment will be terminated if your conduct does not improve in future.”
[23] The second written warning letter dated 13 March 2018 stated:
“Re: Verbal Conduct – Second Warning letter
I am writing to you about your verbal conduct towards the Managing Director during a company toolbox meeting conducted on Thursday 8th March, 2018.
During the meeting, your verbal conduct towards the Managing Director was disrespectful, demeaning and insulting in front of other employees.
Di Carlo Civil Construction encourages its employees to contribute any items, concerns, or issues with management, however it is company expectation that all employees conduct themselves in a professional manner and treat others with dignity and respect as documented in our Workplace Bullying Policy. Your behaviour and conduct was unacceptable and will not be tolerated under any circumstances.
This is the second occurrence of misconduct following an incident on 26/10/2016. It is expected that your conduct immediately improves and that these occurrences cease to continue.
This is your second warning letter. Your employment will be terminated if your conduct does not improve in the near future.”
[24] Mr Trigilia asserted that while he may have had a meeting with DCCC in October 2016, he did not receive a written warning at that time. He stated that he had only received the second written warning letter dated 13 March 2018, which arose from a tool box meeting, during which he and Mr Di Carlo had an exchange about a previous interaction Mr Trigilia had with a customer. Mr Trigilia said Mr Di Carlo adopted a harsh tone against him but also conceded he adopted a similarly harsh one in responding. Mr Trigilia confirmed that he recalled the caution in the second warning that his employment would be terminated if his conduct did not improve.
[25] Mr Trigilia said he was the only person at DCCC who raised concerns about Mr Di Carlo and conduct enagaged in by DCCC. He said he was the only one there possessing “the voice to speak”. Mr Trigilia outlined the following examples of matters he raised during the course of his employment:
a) In June 2018, he raised a concern that the employees were being required to drive trucks that were unregistered with Sedat Albayrak, who was employed in the role of engineer. He said that as a result, he and the other employees were directed not to use the trucks until the registration was sorted out;
b) In approximately August 2018, he discovered DCCC had two new employees working in a confined space environment without the necessary tickets and when he raised this with Mr Di Carlo, he was “brushed off”. This prompted Mr Trigilia to report the matter to WorkSafe and a site inspection followed;
c) On a regular basis, DCCC was paying its employees late meaning that instead of being paid on a Thursday, employees would not receive their wages until the following Monday. Mr Trigilia described being routinely passed from person to person when this occurred but added that this issue had resolved by the time he was terminated. Mr Trigilia also gave the specific example of employees not being paid for a two and a half week period in May 2018 and provided a text message from Mr Di Carlo that purported to explain the position of DCCC. 2
d) On 3-4 occasions, he raised concerns about DCCC not paying superannuation contributions. This occurred approximately 3-5 months prior to his termination and he said when he did not receive a satisfactory response from DCCC, he notified the ATO.
[26] Firstly, there is no dispute between the parties, and I am satisfied, of three of the four matters referred to in ss.396(a)-(d) of the Act, as follows.
[27] Firstly, Mr Trigilia’s application was made within the 21 day period required by s.394(2) of the Act (s.396(a) of the Act).
[28] Secondly, Mr Trigilia is a person protected from unfair dismissal, as he had completed the minimum employment period and he earned less than the high income threshold (s.396(b) of the Act).
[29] Thirdly, neither party suggested this case involves a dispute as to whether or not the circumstances involved a genuine redundancy and I find this to be the case on the facts before me (s.396(d) of the Act).
[30] Section s.396(c) of the Act, requires me to first consider whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code) before turning to deal with the issue of whether the dismissal was unfair. 3
[31] The Code is also referred to in s385(c) of the Act and the Note to s.385 states, “For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[32] Section 388 of the Act then provides:
“388 The Small Business Fair Dismissal Code
(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.
(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.” (emphasis added)
[33] The definition of a “small business employer” for the purpose of the Act is in s.23, with s.23(1) providing that “A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.”
[34] In its Form F3, DCCC outlined that at the time Mr Trigilia was dismissed, it had seven permanent staff. It is not in dispute that DCCC was a “small business employer” at the time of Mr Trigilia’s dismissal.
[35] The Code declared by the Minister pursuant to s.388(1) is as follows:
“Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee's response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer's job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
[36] The Full Bench Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services 4 (Ryman) concluded that the “Summary Dismissal” section of the Code applies to dismissals without notice on the ground of serious misconduct as defined in regulation 1.07.5 The Full Bench then concluded:
“[39] To be clear, nothing stated above is to be taken as suggesting that in relation to such a dismissal it is necessary for the Commission to be satisfied that the serious misconduct which is the basis for the dismissal actually occurred in order for the dismissal not to be unfair. As was explained in Pinawin T/A RoseVi.Hair.Face.Body v Domingo:
“[29] … There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.”
[40] Whether the employer had “reasonable grounds” for the relevant belief is of course to be determined objectively.
[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:
(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.
[42] In this case, Mr Ryman’s dismissal occurred with immediate effect - that is, without the provision of any actual notice - on the ground of serious misconduct. The fact that he was paid an amount said to be in lieu of notice, or that the dismissal occurred some days after the conduct to which it related, does not alter the position in this respect. His dismissal therefore fell to be considered under the “Summary dismissal” section of the Code in accordance with the Pinawin principles. There was no error on the part of the Commissioner on this issue.’ 6 (my emphasis)
[37] The decision in Ryman was applied in Grandbridge Limited v Wiburd, 7 in which the Full Bench stated:
“The proper inquiry raised by the Code is relevantly, whether at the time of the dismissal the employer genuinely believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. The Code focusses attention on the employer’s belief which must be based on reasonable grounds, not on whether the employee’s conduct as a matter of fact and law justified immediate dismissal.” 8
[38] While DCCC did not submit that it had complied with the Code in the Form F3, from the letter of termination outlined above at [15], it may be assumed that it genuinely held the belief that Mr Trigilia’s conduct at the meeting that day was sufficiently serious to justify immediate dismissal. However, I am required to also determine whether this belief was, objectively speaking, based on reasonable grounds. I am unable to do so, based on the evidence before me. Mr Trigilia denies engaging in the behaviour DCCC alleged when terminating his employment, his evidence was convincing and unchallenged, and no evidence has been lead on behalf of DCCC contradicting it.
[39] As such, having considered whether the dismissal of Mr Trigilia was consistent with the Code, I am not satisfied it was (s.396(c) of the Act).
[40] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 of the Act provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[41] There was no dispute and I am satisfied that Mr Trigilia was dismissed within the meaning of s.386(1) of the Act.
[42] As concluded in paragraph [39] above, I am satisfied the dismissal was not consistent with the Code.
[43] As outlined in paragraph [29] above, s.385(d) of the Act does not apply.
[44] The criteria I must take into account when required to assess whether a dismissal was harsh, unjust or unreasonable, within the meaning of s.385(b) of the Act, are set out in s.387 of the Act.
“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.”
[45] I am under a duty to consider each of these criteria in reaching my conclusion and will do so below. 9
Was there a valid reason for dismissal relating to Mr Trigilia’s capacity or conduct? (s.387(a))
[46] In considering whether the dismissal of Mr Trigilia was harsh, unjust or unreasonable, I am required to take into account whether there was a valid reason for the dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees).
[47] A valid reason need not be the reason given to Mr Trigilia at the time of the dismissal. 10 The reason or reasons should be “sound, defensible and well founded”11 and should not be “capricious, fanciful, spiteful or prejudiced”.12
[48] The Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 13 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees). Where conduct of an employee is relied upon to justify the decision to terminate employment, the Commission needs to be satisfied that the conduct as alleged, occurred.14 A mere suspicion of conduct does not amount to a valid reason.15
[49] In the termination letter outlined at paragraph [15] above, DCCC asserted Mr Trigilia verbally threatened Mr Di Carlo on multiple occasions and this constituted serious misconduct due to the nature of the threats, therefore warranting immediate dismissal. DCCC further asserted that as there was no acceptable explanation for Mr Trigilia’s actions, it had “completely lost confidence that an alternate solution could be met moving forward and termination of your employment due to serious misconduct is to take effect immediately.”
[50] Mr Trigilia denies engaging in threatening behaviour, claimed it was Mr Di Carlo who approached him at the meeting, said he did not refuse to leave the DCCC premises and advised that he was never the subject of an intervention order.
[51] I am not satisfied the conduct alleged by DCCC occurred. Mr Trigilia’s account was convincing and unchallenged. He voluntarily made concessions in relation to some matters and there has been no evidence lead on behalf of DCCC contradicting Mr Trigilia’s testimony.
[52] I am not persuaded there was a valid reason for the dismissal related to Mr Trigilia’s conduct.
Notification of the valid reason – s.385(b)
[53] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 16 in explicit terms,17 and in plain and clear terms.18 In Crozier v Palazzo Corporation Pty Ltd19 a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“[73] 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 170(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.”
[54] Based on the evidence before me, I am not satisfied that Mr Trigilia was notified of the reason for termination of his employment before the decision was made. Mr Trigilia said that having asked a question of Mr Keys at the meeting on 27 November 2018, he was told by Mr Di Carlo that he was “gone” and “finished” and this was followed up by the termination letter without there being any further communication between DCCC and him.
Opportunity to respond to any reason related to capacity or conduct – s.387(c)
[55] Ordinarily, an employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 20
[56] Mr Trigilia’s unchallenged evidence was that he was not given any opportunity to respond to the reason he was given for the dismissal. The dismissal was instant and Mr Trigilia had no further dialogue with DCCC before receiving the termination letter.
[57] I am satisfied that Mr Trigilia was not given an opportunity to respond.
Unreasonable refusal by the employer to allow a support person – s.387(d)
[58] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[59] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.” 21
[60] Mr Trigilia was not asked about a support person and I consider this factor to be a neutral consideration in this case.
Warnings regarding unsatisfactory performance – s.387(e)
[61] As Mr Trigilia was not terminated on the basis of unsatisfactory performance, this is not a relevant consideration in this case.
Impact of the size of the Respondent on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[62] As DCCC did not make any submissions addressing these factors, I do not consider its size (s.387(f)) nor the absence of dedicated human resource management specialists or expertise (s.387(g)) are relevant factors in this case.
Other relevant matters – s.387(h)
[63] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.
[64] Mr Trigilia worked for DCCC for approximately 5 and a half years. He said he developed a level of frustration due to poor communication from DCCC and a feeling that he was not being heard. Nonetheless, Mr Trigilia said he had been a loyal employee and had previously been in receipt of praise from Mr Di Carlo, having been considered a good worker who tried to get things right. While Mr Trigilia raised issues with his employer, they were not trivial issues nor issues that did not warrant a serious response. I consider it was well within his rights that he raise them.
[65] Mr Trigilia has acknowledged the second warning letter but not the first. In any event, the first warning, if issued, predated the dismissal by two and a half years. On the evidence before me, the second warning letter appears to have arisen out of an exchange during which Mr Trigilia and Mr Di Carlo verbally sparred in equal measure. I draw no adverse inference from either warning said to have been given by DCCC.
[66] Having considered each of the matters specified in s.387 of the Act, I am satisfied the dismissal of Mr Trigilia was harsh, unjust and unreasonable because the response of Mr Keys and Mr Di Carlo to the question Mr Trigilia posed at the meeting on 27 November 2018 was entirely disproportionate.
[67] Accordingly, I find that Mr Trigilia’s dismissal was unfair. Mr Trigilia’s application for unfair dismissal remedy is therefore granted.
[68] In the circumstances where I have found Mr Trigilia was protected from unfair dismissal at the time of being dismissed and that he has been unfairly dismissed, s.390 of the Act prescribes that a remedy is available. Accordingly, I am required to determine whether to order the reinstatement of Mr Trigilia or, in the circumstances where reinstatement is inappropriate, an order for compensation if I am satisfied that such an order is appropriate in all the circumstances. 22
[69] The primary remedy under the Act is reinstatement, however Mr Trigilia has started new employment and does not seek reinstatement. In the circumstances of this case, I am satisfied it is inappropriate to order reinstatement (s.390(3)(a)).
[70] I must therefore consider whether it is appropriate in all the circumstances to make an order for payment of compensation (s.390(3)(b)).
[71] Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered.
[72] In considering each of the criteria in s.392 of the Act, it is useful to refer to the helpful restatement of principles to be applied in the assessment of compensation in Johnson
v North West Supermarkets T/A Castlemaine IGA: 23
“[9] The well-established approach to the assessment of compensation under s 392 is to apply the ‘Sprigg formula’, derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the current legislative framework in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c), that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:
“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’
[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”
[10] The identification of this starting point amount ‘necessarily involves assessments as to future events that will often be problematic,’ but, as the Full Bench observed in McCulloch v Calvary Health Care Adelaide, ‘while the task of determining an anticipated period of employment can be difficult, it must be done.’
[11] Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.” (references omitted)
[73] The Sprigg formula was discussed and refined in Ellawala v Australian Postal Corporation 24 as follows:
“[31] The principles applicable to determining an amount to be ordered in lieu of reinstatement are dealt with in Sprigg. In that case the Full Bench endorsed the following approach:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
[32] Any amount provisionally arrived at by application of these steps is subject to whether offsetting weight is given to other circumstances, including those that need now to be taken into account under paragraphs 170CH(7)(a), (b) and (c). The legislative cap on the amount able to be ordered is then applied pursuant to ss.170CH(8) and (9).
[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
“...we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.”
[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.
[35] In a particular case the Commission estimates that if the applicant had not been terminated then he or she would have remained in employment for a further 12 months. The applicant has earned $3,000 a month for the 18 months since termination, that is $54,000. Only the money earned in the first twelve months after termination - that is $36,000 - is deducted from the Commission's estimate of the applicant's lost remuneration. Monies earned after the end of the "anticipated period of employment", 12 months after termination in this example, are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment.
[36] The next step is to discount the remaining amount for "contingencies". This step is a means of taking into account the possibility that the occurrence of contingencies to which the applicant was subject might have brought about some change in earning capacity or earnings.
…
[45] In relation to the fourth step set out in Sprigg we note that the usual practice is to settle a gross amount and leave taxation for determination.” (my emphasis, references omitted)
[74] In Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, 25 the Full Bench stated that in quantifying compensation, it is necessary to set out with some precision the way in which the various matters required to be taken into account under s.392(2) (and s.392(3) if relevant), and the steps in the Sprigg formula, have been assessed and quantified. The Full Bench also proffered that the way in which a final compensation amount has been arrived at should be readily apparent and explicable from the reasons of the decision-maker.
[75] I will assess compensation having regard to these matters.
Remuneration that would have been received if the dismissal had not occurred– s.392(2)(c)
[76] The payslip Mr Trigilia submitted outlines that his gross earnings were $30.12 per hour and $1,204.80 per week.
[77] Mr Trigilia was aged 56 years and had been employed full time for approximately 5 and a half years at the time of his dismissal. He stated his intention and expectation was to stay in the employ of DCCC for years to come and he had no intention of moving on. Mr Trigilia conceded he had experienced a level of frustration with the lack of communication from DCCC in more recent times and outlined the range of issues he had raised which had concerned him. While he acknowledged there had been exchanges between himself and Mr Di Carlo, he also gave account of what he characterised as the good standing in which he had been held by Mr Di Carlo earlier in his employment. Mr Trigilia also gave evidence that the employees of DCCC had been made aware that there was the possibility the business was to be sold and so, despite any issues he was more recently experiencing with Mr Di Carlo, he was resolved to riding them out, remaining with the business and continuing to work for new owners. In this respect, he proffered that there would be sufficient ongoing work for the business due to a significant contract DCCC holds with Yarra Valley Water.
[78] There was no evidence before me to contradict Mr Trigilia’s version of what occurred on 27 November 2018 and I found his evidence convincing. I do not regard the work situation as being such that Mr Trigilia would have voluntarily left his employment in the near future. As outlined in paragraph [64] above, I consider Mr Trigilia was well within his rights to raise with Mr Di Carlo the issues he had, even if Mr Di Carlo considered this to be in some way objectionable.
[79] Having regard to these factors, I am satisfied that Mr Trigilia would have remained in employment with DCCC for a further period of at least 12 months. Any longer period than this starts to drift into the unduly speculative. Based on the rate of earnings Mr Trigilia was receiving at the date of his dismissal, the remuneration he would have received during that period would have been $62,649.60 (gross). This is the starting point.
Remuneration earned – s.392(2)(e) and income reasonably likely to be earned – s.392(2)(f) and (g)
[80] Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f) of the Act. Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula. 26
[81] The payslip submitted by Mr Trigilia details that he was paid up to and including when he was terminated on 27 November 2018 and the amount of $722.88 gross for 28 November 2018-30 November 2018 (inclusive). Mr Trigilia confirms that he was paid these amounts.
[82] Mr Trigilia stated that he did not earn any additional remuneration until he commenced his new employment approximately 6 weeks later on Wednesday 16 January 2019. The new employment is with a business he has previously owned and operated. He stated that he is now employed as a Supervisor earning $33.00 per hour gross for a 38 hour week, equating to gross ordinary weekly earnings of $1254.00. Mr Trigilia also stated there is regular overtime work required and payable at time and a half. He says he has been averaging 8 hours of overtime per week, paid at $49.50 gross per hour or $396.00 gross per week. Mr Trigilia agreed with the proposition that his gross weekly earnings since he started in his new role equate to $1650.00.
[83] Mr Trigilia has therefore earned approximately $14,850.00 gross in the nine weeks since commencing in his new role which, together with the $722.88 gross received for 28 November 2018-30 November 2018 (inclusive), means he has earned $15,572.88 in the period from the date of his dismissal to date.
[84] As Mr Trigilia commenced receiving remuneration from his new job from 16 January 2019 and this is before the time when his employment would in my view have ended, these earnings should reduce the amount of compensation ordered.
[85] The evidence suggests Mr Trigilia is reasonably likely to continue to earn $1,650.00 gross per week during the period between now and the date upon which I would order that the compensation be payable (7 days). The $1,650.00 gross earnings for such a period would also need to be deducted.
[86] Continuing in this role for the balance of the period I have determined that Mr Trigilia would have remained in employment with DCCC, i.e. beyond the date upon which I would order that the compensation be payable, equates to 36 weeks and would see Mr Trigilia earning at least $1,254.00 gross per week before overtime, for an additional total of $45,144.00. I have made no assumption as to possible overtime earnings over that period.
[87] In mathematical terms, that means the actual and likely income for Mr Trigilia in the twelve month period from the date of his dismissal ($62,366.88) 27 and the amount calculated for the purpose of s.392(2)(c) ($62,649.60)28 almost equates but when deducted, leaves $282.72 gross in compensation.
Length of service – s.392(2)(b) and any other matters – s.392(2)(g)
[88] Mr Trigilia had been employed for approximately 5 and a half years at the time of his dismissal and was summarily dismissed for alleged serious misconduct, which I am not satisfied occurred, without payment for what would otherwise have been his entitlement of five weeks’ notice. I consider this is a matter connected to Mr Trigilia’s length of service and is therefore to be taken into account under s.392(2)(b), and/or as a relevant matter under s.392(2)(g). I consider it is appropriate, having regard to all the circumstances of the case, for Mr Trigilia to be compensated for this loss, which he suffered because of his unfair dismissal. Five weeks’ pay at $1204.80 per week gives a total of $6,024.00 gross.
[89] I do not consider there is any basis for any deduction for contingencies in this matter and it will be left to DCCC to deduct taxation required by law.
Viability – s.392(2)(a)
[90] There was no evidence before me that would support a finding that an order for compensation will affect the viability of DCCC in any material way and there will be no deduction made having regard to this factor.
Mitigation efforts – s.392(2)(d)
[91] In considering whether Mr Trigilia has taken steps to mitigate the loss suffered as a result of the dismissal, I should take into account whether he acted reasonably in the circumstances. 29 I find that in securing a new job so soon after his termination, he has. There will be no adjustment on account of this factor.
Misconduct – s.392(3)
[92] While DCCC contended in the Form F3 that Mr Trigilia was dismissed for allegedly engaging in verbal attacks and threats against Mr Di Carlo and Mr Keys, this allegation could not be tested and was, in any event, denied by Mr Trigilia. I am not satisfied that there was misconduct on the part of Mr Trigilia that contributed to the decision of DCCC to dismiss him and therefore do not make any reduction on account of this factor in the proposed compensation.
Compensation cap: s.392(5)&(6)
[93] The amount of compensation I order must not exceed the lesser of:
1) the amount Mr Trigilia received or was entitled to receive during the 26 weeks immediately prior to his dismissal (in this case $1,204.80 gross x 26 weeks = $31,324.80); and
2) half the amount of the high income threshold immediately before the dismissal (in this case $145,440 ÷ 2 = $72,700.00).
[94] As such, the compensation cap in this matter is $31,324.80 gross and the amount of compensation proposed is below this.
Instalments: s.393
[95] I do not consider that there is any reason for compensation to be made by way of instalments.
Shock, Distress: s.392(4)
[96] The amount of compensation calculated must not and will not include a component for shock, distress, humiliation or other analogous hurt caused to Mr Trigilia by the manner of his dismissal.
[97] I am satisfied that Mr Trigilia was protected from unfair dismissal, that the dismissal was unfair and that order for compensation equating to $6,486.72 ($288.72 + $6,024.00), less taxation as required by law, is an appropriate remedy in all the circumstances.
[98] An order requiring the payment of this amount within 7 days will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr G Trigilia and Ms S Trigilia, for the Applicant.
Hearing details:
2019.
Melbourne.
14 March.
Printed by authority of the Commonwealth Government Printer
<PR706036>
1 Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].
2 Exhibit A5.
3 TIOBE Pty Ltd T/A TIOBE v Chen [2018] FWCFB 5726 at [24]
5 Ibid at [38].
6 Ibid at [39]-[42].
8 Ibid at [14].
9 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498.
10 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
11 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
12 Ibid.
13 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
14 King v Freshmore (Vic) Pty Ltd (AIRC, Full Bench, 17 March 2000), Dec 283/00 M Print S4213 at [23]–[26].
15 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
16 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
17 Previsic v Australian Quarantine Inspection Services (AIRC, Holmes C, 6 October 1998), Dec 907/98 M Print Q3730.
18 Ibid.
19 (2000) 98 IR 137, 151.
20 RMIT v Asher (2010) 194 IR 1, 14-15.
21 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].
22 Section 390(3) of the Act.
24 Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000)
25 [2017] FWCFB 429 at [43].
26 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 at [31].
27 Arrived at by adding the highlighted amounts in paragraphs [83], [85] and [86] above.
28 See above at paragraph [79].
29 Biviano v Suji Kim Collection PR915963 at [34].