DECISION

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

Mr Jeremy Lee
v
Superior Wood Pty Ltd T/A Superior Wood
(U2018/2253)

Application for an unfair dismissal remedy – Question of remedy remitted for determination having regard to findings of Full Bench – Reinstatement inappropriate – Compensation ordered.

[1] On 1 May 2019 a Full Bench of the Fair Work Commission handed down decision [2019] FWCFB 2946 upholding an appeal against the decision [2018] FWC 4762 of Commissioner Hunt that the dismissal of Jeremy Lee (the Applicant) by Superior Wood Pty Ltd (the Respondent) was not unfair.

[2] The Full Bench found that the dismissal of the Applicant was unjust. The Full Bench ordered as follows:

1. The appeal is upheld;

2. The Decision in [2018] FWC 4762 is quashed;

3. On a rehearing we determined that Mr Lee’s dismissal was unfair; and

4. The question of what remedy, if any, should be ordered is remitted to Commissioner Simpson for determination having regard to our findings.

[3] I have set out in some detail the nature of communications between the Applicant and the Commission which I will later address at the conclusion of this decision separately and unrelated to my conclusion on remedy.

[4] At the directions hearing on 29 May 2019 the Applicant was represented by his brother Mr Andrew Lee. The Respondent was represented by Mr Mark Curran of DWF Law. The directions hearing was conducted in Chambers by telephone and recorded on a Zoom recording device which is a common practice in Commission. In the course of the directions hearing on 29 May 2019 Mr Andrew Lee interrupted me on several occasions and I asked him not to interrupt me.

[5] Mr Andrew Lee raised the fact that a request had been sent to the Commission that the hearing (the directions hearing of 29 May) was to be made public and published on the Fair Work Commission website and asked for clarification on those requests. I explained that the proceedings were being recorded on a Zoom device and that a recording could be made available to the parties, and that it was common practice in the Commission for directions hearings to be conducted in this manner to minimise time and cost to parties. I explained a transcript can be produced from the recording. Mr Andrew Lee submitted to me that I was aware that a request had been made that the proceedings be recorded and a transcript be published on the Fair Work Commission website, and he said that was his request. I responded that I was happy for the Applicant to be provided with a recording of the directions hearing and advised that the Commission does not publish transcript on its website for unfair dismissal proceedings.

[6] Mr Andrew Lee submitted that this matter was of national significance and anything procedural and anything to do with the matter should be published on the public record to ensure that parties get the benefit of impartiality. I advised I did not intend to depart from the procedure that the Commission adopts for other unfair dismissal proceedings but a transcript can be produced of the proceeding from the recording if requested. I advised a recording of the directions hearing would be provided and a transcript could be produced from that recording.

[7] Mr Andrew Lee then raised that a request had been made in response to the Notice of Listing requesting details about what was going to be discussed as the Applicant was self-represented and that if a Notice of Listing is sent at short notice with no description of what is going to happen at that hearing they are at a great disadvantage. Mr Andrew Lee submitted that the Commission had “done nothing to even attempt to mitigate the imbalance” between the parties.

[8] I explained to Mr Andrew Lee that after receiving the email correspondence of 26 May from the Applicant a response was sent from my Chambers the following day which included an explanation that the listing was for directions only. Whilst giving my explanation Mr Andrew Lee continually interrupted me and criticised the Commission.

[9] Mr Andrew Lee then raised that an adjournment request had been made and I advised that the request for an adjournment had been declined because it was only a directions hearing.

[10] The Respondent then advised it was getting advice from a Queens Counsel with respect to their rights to appeal and the process was well advanced but not finalised and for that reason the Respondent requested an adjournment for two weeks to finalise that process. I asked Mr Andrew Lee what his response was to the adjournment request and he proceeded to further criticise the Commission and argue with my earlier ruling not to adjourn the directions hearing. He ultimately advised that the Applicant did not object to the adjournment and the adjournment was granted. The matter was subsequently relisted for 3pm on 12 June 2019. I advised the parties that the hearing on 12 June would again be a telephone directions hearing and not a lengthy hearing.

[11] Mr Andrew Lee asked me to explain what remedies or powers were available to me in deciding the matter. I advised that there were already submissions and evidence before the Commission directed to remedy. I referred Mr Andrew Lee to relevant sections of the legislation and that evidence and transcript and submissions already before the parties contained material relevant to remedy. I directed the Applicant to the Unfair Dismissal Benchbook on the Fair Work Commission website. I went on to explain the Commission could order reinstatement, order continuity of service, and also make an order for lost income, or alternatively order compensation.

[12] Mr Andrew Lee requested if Mr Finlayson could advise whether there were still fingerprint scanners on site and Mr Finlayson confirmed that there were.

[13] On 4 June 2019 the Applicant sent email correspondence to my Chambers stating that he had requested that the last directions be held as a public hearing and be published on the FWC website and his request was not granted and he was promised an audio recording of the hearing which he had not received as promised and to please forward it as soon as possible.

[14] Further the Applicant requested that the hearing on 12 June (a directions hearing) be a public hearing with the transcript to be published on the Fair Work Commission website. The email also requested that the hearing (the directions hearing) start at 1pm to give plenty of time for the matters to be covered in full.

[15] On 4 June 2019 email correspondence was sent from my Chambers advising the Applicant of the process for obtaining the audio recording of the directions hearing on 29 May. The Applicant was also advised that the directions hearing on 12 June 2019 would remain listed at 3pm as it is for the purpose of directions and programming only. The Applicant was also advised the matter would be heard as a public hearing in a hearing room at the Commission in Brisbane and parties may participate by phone or attend in person.

[16] At the hearing on 12 June 2019 Mr Andrew Lee appeared by telephone on behalf of his brother the Applicant, who was also attending by phone and the Respondent was again represented in person by Mr Curran of DWF Lawyers.

[17] Mr Curran advised at the commencement of the directions hearing on 12 June that the Respondent would not be seeking a review of the Full Bench decision.

[18] Mr Andrew Lee raised a question of whether the Commission needed to reconsider the matter of legal representation given that the Applicant is now self-represented. I indicated that I was proceeding on the basis the matter of legal representation had not been disturbed. It was submitted for Mr Lee that the decision of Commissioner Hunt had been quashed and any leave to appear was quashed along with it.

[19] Mr Curran submitted that the matter had been remitted to me, it was the same file number and the same proceedings and if a party is given leave to be represented in a matter that should apply for the entirety of the proceedings. Mr Andrew Lee pressed his objection that the Respondent should not be granted leave.

[20] I advised the parties that the Applicant was represented by a lawyer at first instance, the Appeal decision did not deal with that matter, and the decision to grant legal representation at first instance is undisturbed and I ruled accordingly. After I had ruled on the matter Mr Andrew Lee continued to argue with my ruling and I explained that I had made a decision and if he wished to challenge that he needed to appeal that decision.

[21] I proceeded to seek to settle dates for the filing of any further material in regard to remedy and indicated to the parties that there was considerable material already before the Commission that was relevant to determining remedy; however the Commission did not have material before it concerning the period since the time of the hearing in June 2018. I indicated to the parties that the Commission intended to provide references from the transcript and evidence which appeared to be relevant to determining remedy being reinstatement, continuity of employment, and restoration of lost pay or alternatively compensation.

[22] I explained to Mr Andrew Lee that in the event I was to determine the Applicant should be reinstated there is also power to order continuity of employment and restoration of lost pay. I explained that restoration of lost pay is not capped at six months. I also explained that if I determined that reinstatement is not appropriate then it is correct that the maximum compensation is six months’ pay.

[23] I explained that it is appropriate to get further evidence and submissions because events that have occurred since the hearing at first instance may be relevant to the final determination. I explained that I needed to take into account for example any other income the Applicant has earned since the time of the first decision. I explained that the Respondent was entitled to cross examine the Applicant about that. Mr Andrew Lee queried whether Mr Finlayson would be available for cross examination, and I advised that it was for the Respondent to decide whether it wished to call further evidence, however it was also open to the Applicant to seek an order that Mr Finlayson give evidence however it would need to make an argument about why that evidence would be relevant. I explained that if the Applicant did not give any further evidence concerning the period since the time of the hearing in June 2018 then the Commission would not have evidence about that and it might not help his case.

[24] Mr Andrew Lee stated that the Commission was saying the Applicant should be available for cross examination without any orders. I explained to Mr Andrew Lee that he did not fairly represent what I had said, and I explained that I did not intend to compel the Applicant to give further evidence.

[25] I indicated that I intended to issue directions for the filing of further material. Mr Andrew Lee interrupted me and again returned to submitting that any further delay was costing his brother. I explained that I was not going to determine the matter without giving both parties the opportunity to file further material relevant to the time since the hearing in June 2018.

[26] I proposed a program for filing material over several weeks and also said that I would provide a summary of material that I believed was already on the record.

[27] Mr Curran indicated that their Counsel was unavailable for the last two weeks of July. Mr Andrew Lee then submitted that the matter be heard and determined the next day (13 June). I denied that request. Mr Andrew Lee then asked that the Commission order the immediate reinstatement of his brother “today”. I denied that request and repeated that I needed further evidence. I ultimately settled a program for the filing of material so that the Applicant file by 19 June, the Respondent by 26 June and the matter be heard on 10 July.

[28] Throughout Mr Andrew Lee continued to object to the program and continued to argue with the ruling on the matter and returned to making further submissions to the effect that delay was costing the Applicant. Mr Andrew Lee then said that he wished to speak to what had been done to his brother by both the Respondent and the Commission. I refused to hear any further submissions and adjourned the directions hearing.

[29] On 13 June 2019 an email was sent from Chambers confirming the directions advised at the directions hearing. I directed that further evidence and submissions should include material relevant to the period since the hearing on 15 June 2018.

[30] The email correspondence from Chambers also provided a list of material that I had identified from the material already before the Commission from both the hearing on 15 June 2018 and in filed written submissions that may be relevant to the issue of determining remedy. The parties were advised that the list was not intended to be exhaustive. The parties were advised that copies of material could be provided by Chambers upon request.

[31] On 18 June 2019 the Applicant sent email correspondence to my chambers as follows:

“Dear Cmr Simpson

I requested the hearing be public and the audio recording and transcript be provided to me and made available to the public. Having requested the transcript from your associate earlier today, Andrew Dawson suggested I need to fill out a form and request it from Eqip.

Eqip is at your direction, so trying to tell me I have to ask them for a copy is to misrepresent your authority. As I understand it, you have carriage of the matter, and as a party, I am entitled to a copy of the transcript of any proceedings.

I am requesting you provide me with a copy of the transcript of the Directions Hearing 12 June 2019 @ 15:00 onwards.

Jeremy Lee”

[32] Correspondence was sent to the parties the same day from chambers advising that I did not intend to order a copy of the transcript for the directions hearing on 12 June 2019, and also advising that the parties may request a copy of the transcript at their own cost, through Eqip as previously advised. Alternatively, I advised that the parties may request access to a free copy of the audio of the hearing be provided using the audio order form and a copy was attached to the email.

[33] On 19 June 2019 the Applicant sent email correspondence to my Chambers attaching Orders to Attend and Orders to Produce. The email read as follows:

“Dear Cmr Simpson

Please find attached Orders to Attend and Orders to Produce, the Applicant requests for the 10 July 2019 Arbitration Hearing.

These requests and a statement reiterating what has already been submitted and what has occurred will form the basis of the Applicants presentation.

I also assert that any delay in my reinstatement on the basis of my continuation of employment is at my great expense. It has occurred and continues under the management of the Commission since the ruling of my unfair dismissal and against my strenuous and repeated objections. The submissions included here are only made as a result of the Commissions insistence on the unnecessary delay of my reinstatement.

Jeremy Lee”

[34] The Form 51 applications for orders requiring a person to attend before the Commission were directed to Irene Falk, the Federal Privacy Commissioner; Commissioner Jennifer Hunt; and Mr Skene Finlayson, a director of the Respondent.

[35] The grounds for seeking the orders to attend in the case of Irene Falk include that “Her evidence and opinion needs to be heard in this matter of national significance.” It was also submitted that the Commissioner’s office is central to and inextricably linked to the matter at hand and her opinion on the Respondent’s conduct and an appropriate remedy must be ascertained. The Applicant also stated that Irene Falk’s evidence would clearly identify where responsibility for the unfair dismissal of the Applicant rests.

[36] In the case of Commissioner Hunt the order was sought it seemed because of the Commissioner causing delay in the determination of the matter, and it was said this was relevant to remedy.

[37] In the case of Mr Finlayson the order was sought because of his role in the dismissal and would identify the conduct of the Respondent and the impact on the Applicant.

[38] A Form 52 application for orders for production of documents was directed to Angelene Falk, at the Office of Australian Information Commissioner to Superior Wood, Finlayson Group or any employers association regarding the privacy implications of the introduction and use of fingerprint/biometric scanners in the workplace. The application itself also stated that it seeks legal advice provided by DWF Law to the Respondent in relation to the Respondents’ introduction of biometric scanners to the workplace, or any other legal advice sought by the Respondent for the same purposes.

[39] On 20 June 2019 I directed that email correspondence be sent the parties from my Chambers denying the Form 51 applications and the Form 52 application on the basis that the reasons given for seeking the orders appeared to be either related to the substantive case concerning whether the dismissal was unfair which had already been determined by the Full Bench, or otherwise not relevant to the matters in s.390, 391 or 392.  The reasons given in support of making the orders were not sufficiently relevant to the determination of the matter of appropriate remedy. I also denied the application pertaining to Mr Finlayson giving evidence when at the time it was unknown whether the Respondent intended to call Mr Finlayson to give evidence in its own case.

[40] Whilst I did not become aware at the time I have subsequently become aware that a further Form 51 application had made at the same time seeking an order for the attendance of Mr Ian Swinbourne. The reason given by the Applicant for explaining how an order requiring Mr Swinbourne to appear would assist the Commission was identical to the reason given for the application pertaining to Mr Finlayson and would have been denied had I been aware of it at the time for the same reasons.

[41] In the same email correspondence from Chambers the Applicant was directed to pages 167 to 174 of the Unfair Dismissals Benchbook concerning s.391(1), pages 174 to 176 concerning s.391(2) and pages 177 to 186 concerning compensation as found on the Fair Work Commission website. The Applicant was advised I would require up to date relevant information.

[42] The Applicant was advised that he had not filed a statement and he was granted an extension until 5pm Monday 24 June 2019 to do so. 

[43] On 25 June 2019 at 11.45am the Applicant sent email correspondence to my Chambers copied to the Respondent and their legal representatives requesting that the Remedy Arbitration Hearing scheduled for 10 July 2019 be a public hearing and that the audio and transcript from the hearing be publicly available on the FWC website and that members of the public and media may attend.

[44] The Applicant went on to say that the remedy hearings are an inseparable and crucial part of the Full Bench Decision and it is insufficient to merely rule the Applicant’s dismissal unfair; the Commission must be seen to provide material compensation to confirm that.

[45] The Applicant said that the remedy hearing/proceedings and any outcomes actually form part of the Full Bench Decision and as such must be available for public scrutiny. The Applicant said that as the Commission is a publicly funded tribunal, purporting to decide on matters in an open and transparent manner, his request for the audio file(s) and transcript(s) of all hearings is fair, reasonable and proper.

[46] The Applicant said he sought an undertaking from me that the Remedy Arbitration Hearing of 10 July 2019 would be conducted in public, and the transcript be posted on the FWC website for public download.

[47] On the same date my Chambers became aware of two Federal Court matters appearing to relate to the application before me, both listed on the Commonwealth Courts website portal.

[48] Correspondence was sent from my Chambers to the Applicant and to the Respondent and their legal representative advising that the matter had already been listed for public hearing, in person, on 10 July 2019 and would be held at the Fair Work Commission in Brisbane and I intended to proceed on this basis. I advised that as had previously been advised the parties are welcome to order copies of the transcript for the hearing, and if I decided to order a copy of the transcript a copy would be provided for the parties. I also advised the final decision would be published on the Fair Work Commission website.

[49] I also advised that I had become aware of two Federal Court matters appearing to relate to this application, both of which were listed on the Commonwealth Courts Portal QUD356/2019 and QUD385/2019 and both applications named the Fair Work Commission as a respondent.

[50] I advised that it was my preliminary view that if the Federal Court matters concern an appeal of the decision in C2018/6600, the application before me (U2018/2253) should be stayed until the matters before the Federal Court were resolved and invited both parties to be heard on the issue and requested a response in writing by 3.00pm the following day 26 June 2019.

[51] The Respondent replied by email on 26 June 2019 advising that they had not been provided with a copy of the proceedings, had no knowledge of them, and were not in a position to comment on what impact the proceedings may or should have on the application before me. The Respondent said it would separately request a copy of all material filed in the Federal Court proceedings from the Applicant so it could consider their impact on these proceedings.

[52] The Applicant replied by email on 26 June 2019. In brief summary the Applicant complained that delay by the Commission is inaction in favour of the employer. The Applicant stated that he cannot forestall any decision already made any more than he could prevent the Commission from appointing to his matter a Commissioner with a conflict of interest which appears to be a reference to Commissioner Hunt.

[53] The Applicant stated that any ruling like this should be made publicly, in a public hearing accessible to the media. The audio and the transcript should be published to the Commissions website and provided to the parties and accompanied by a full explanation, including the legislative basis on which it was made and any precedents.

[54] The Applicant went on to state as follows:

“If your ruling is an attempt to pressure me into renouncing my appeals to the Federal Court, I would prefer you simply to ask me to do that. If you have the discretionary power to offer any alternatives, I’d like to know in plain english what these are. What alternatives are there to your stay on remedying my unfair dismissal.”

[55] An email was sent from my Chambers in response to the Applicant on the same day advising that I had not yet made a decision to cancel the hearing on 10 July 2019 or to stay the matter. The email from Chambers directed the Applicant to provide Chambers with a copy of the applications and also serve the Respondent a copy of the applications filed in the Federal Court by 5pm Friday 28 June 2019 and that the matter would be listed for a hearing at 10am on Tuesday 2 July 2019 to determine whether the hearing of 10 July should proceed.

[56] The following day the Applicant sent email correspondence to my Chambers. The email read as follows:

“Dear Commissioner Simpson,

Ever since I have been self-represented I have vociferously and repeatedly requested that all proceedings and hearing be fully public.

A full public hearing should include:

a. All hearings procedural or otherwise be accessible by the public and the media.

b. All audio from these hearings be made available on the FWC website for download by the public.

c. Transcripts be produced from all hearings and be published to the FWC website and available to the public.

d. A copy of the audio and transcripts from all hearings be provided to the parties, unconditionally, without any restrictions on publication. At present the FWC is requiring parties to sign the following: “I will not broadcast or otherwise publish, distribute, post or transmit, including via any online mode, an audio recording of Commission proceedings, and will not cause Commission audio recording to be broadcast or otherwise published, distributed, posted or transmitted.”

The FWC condition is a coercive restriction on the public’s access to the processes of the FWC, a body it empowers and funds. The FWC should be transparent and should not be attempting to hide its operations. In view of this:

1. Will the transcript of the 2 July 2019 be published on the FWC website?

2. Will parties be provided with the hearing audio and transcript without condition?

Please confirm ASAP.

Jeremy Lee.”

[57] At 4.17pm on 27 June 2019 email correspondence was sent from my Chambers to the Applicant and copied to the Respondent and its representative.

“Dear Mr Lee,

The Commissioner repeats that as previously advised the matter on 2 July 2019 is listed as a public hearing.

Arrangements for access to transcript and audio of the hearing are as has been previously advised to you and are consistent with the practices of the Commission in unfair dismissal proceedings before the Commission generally.”

[58] After having given further consideration to whether the matter before me should be adjourned pending the matters lodged in the Federal Court I resolved to proceed to hear the matter remitted to me without needing to hear from the parties given the Applicant’s appeal to FWC Full Bench was successful, and whatever the Applicant may have sought from his Court applications, it was unlikely to have any impact on the matter before me. Email correspondence was sent to the parties advising of my decision, and cancellation of the 2 July hearing, and that the hearing listed for 10 July 2019 would proceed.

Earlier Written Submissions

[59] The Applicant submitted an outline of submissions filed on 27 April 2018 that reinstatement is appropriate because there had been no serious or irrevocable breakdown in the employment relationship. It was submitted that prior to his dismissal Mr Lee was assertive but professional and courteous and if the impasse concerning his biometric information can be resolved, he is willing and able to continue to serve Superior Wood in the same manner as before and he seeks reinstatement on that basis. 1

[60] The Respondent submitted in written submissions of 8 May 2018 that reinstatement might be inappropriate in a range of circumstances and referred to case authorities. 2

[61] The Respondent referred in its 8 May 2018 submission to the issue of trust and confidence and the decision in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 in support of the its submission that where trust and confidence have been lost, reinstatement is impractical. Some of the matters referred to in regard to remedy in its earlier submissions had been overtaken by the findings of the Full Bench.

[62] The Respondent also submitted that by the time the matter was determined by the Commission, the position that was occupied by the Applicant was no longer available and accepted that while this on its own is insufficient for a finding that reinstatement is not appropriate, it was one factor that needed to be taken into account and in this case was a powerful factor, and that it was not appropriate to reinstate an employee to a lower position when a position with terms and conditions no less favourable is unavailable. The Respondent referred to Smith v Moore Paragon Australia Ltd 3 in support of these submissions.

[63] The Respondent in the first instance matter relied on the evidence of Mr Ian Swinbourne at paragraph [21] to submit that the Applicant’s role had been filled, and the evidence of Mr Skene Finlayson at paragraph [27] to submit that there are no vacancies in the Group for that role or a role requiring the skills the Applicant has and therefore reinstatement is not appropriate. 4

[64] In reply submissions of 15 May 2018 it was submitted for the Applicant that any loss of trust and confidence in the Applicant by Superior Wood is not soundly and rationally based. 5 The Applicant submitted at that time that the Respondent concedes that the fact that the Applicant’s position is no longer available is only one factor, and that the Respondent contends that it is a powerful factor in this case, but does not explain why.6

[65] In an outline of submissions filed for the Applicant dated 15 June 2018 further submissions were made concerning remedy. It was again submitted that the appropriate remedy is reinstatement under s 391(1) of the Fair Work Act 2009 together with an order under s 391(3) that the Respondent pay the Applicant an amount for the remuneration the Applicant lost because of the dismissal. It was submitted that the appropriate amount as at 15 June 2018 was $14,841.28 calculated on the basis of the Applicant’s average income of $927.58 per week multiplied by the 18 weeks which have elapsed since the dismissal, minus two weeks representing the two week’s pay he received in lieu of notice. It was submitted that the order ought also include an order under s 391(2) that maintains continuity of the Applicant’s employment by the Respondent.

[66] It was submitted for the Applicant that reinstatement is the primary remedy and must be preferred over compensation unless the Commission is satisfied of two things:

(a) Reinstatement is inappropriate; and

(b) Compensation is appropriate.

[67] It was submitted for the Applicant that the Commission cannot be satisfied on the evidence before it that either, let alone both, of those conditions is met. There is no evidence that the Applicant failed to comply with directions other than the unlawful/reasonable ones which led to his unfair dismissal, and therefore there is no reason to conclude that reinstatement is inappropriate

[68] The Applicant submitted that the Respondent alleges that there has been a loss of trust and confidence and the Respondent bears the onus of establishing that allegation citing Perkins v Grace Worldwide (Aust) Pty Ltd 7 and Nguyen v Vietnamese Community Centre in Australia.8 The Applicant’s submission stated that such an allegation must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee.

[69] The Applicant submitted in its outline of 15 June 2018 that Mr Finlayson’s evidence about loss of trust and confidence ought not be accepted. It submitted that his evidence that he, as the sole director of the Respondent, has lost faith that the Applicant would, if reinstated, act in the best interest of the company and follow directions and policies of the company ought to be rejected because Mr Finlayson could not reasonably hold that belief in light of the unchallenged evidence of the Applicant about his prior compliance with policies and directions of the Respondent.

[70] The Applicant submitted that even if the Commission accepts that Mr Finlayson holds that unreasonable belief, it is not enough for an employer to simply assert that trust and confidence in an employee has been lost. The Applicant submitted there must be evidence that the loss of trust and confidence is having a detrimental effect on the operations of the workplace and that evidence is lacking here.

[71] The Applicant submitted that similarly evidence that it would be difficult or embarrassing for the Respondent to be required to reinstate the Applicant does not necessarily establish so great a loss of trust and confidence as to make reinstatement inappropriate.

[72] The Applicant said that it did not accept the Respondent’s allegation that neither the Respondent nor any of its associated entities within the Finlayson Group has any vacancies for the Applicant’s former role or any similar role, and the mere assertion to that effect by Mr Finlayson is insufficient evidence to satisfy the Commission that it is true.

[73] As set out above the Applicant did not file any submissions or evidence as it was invited to do by my directions on either 19 June 2019, or by the extended date of 24 June 2019 to address the matters remitted to me, and specifically the period since the hearing on 15 June 2018.

[74] The Respondent filed an outline of submissions on 26 June 2019 continuing to maintain reinstatement was not appropriate. The Respondent made further submissions on the issue of trust and confidence. 9

[75] The Respondent referred to a decision of the New South Wales Industrial Relations Commission in Marroun v State Transit Authority 10 where it was considered that reinstatement was not possible given the appellant’s public characterisation of their employer as ‘bastard[s]’ and ‘criminals’ on social media two months post dismissal. The Respondent referred to the following passage from that decision;

“However to ask an employer to place trust and confidence in a public servant who has, and not in the heat of the moment, publicly characterised that employer as ‘bastard’ and ‘criminal with stars’ is not within the maximum elasticity even of the employment contract..” 11

[76] Issues addressed in these written submissions are dealt with in further detail below.

Evidence and Statements Prior to Hearing of 10 July

[77] The Applicant said in his statement of 16 April 2018 that he was unemployed, and had applied for jobs but there are few opportunities for someone with his skills and experience in Gympie and the surrounding area. He also said that before getting the job with the Respondent he was unemployed for about 18 months. 12

[78] Mr Finlayson said in his witness statement of 9 May 2018 that if the Applicant had been allowed to refuse to use the scanner this would not have sent a good message to other staff, 13 he opposed any re-instatement of the Applicant because he has lost faith that the Applicant will act in the best interests of the company, and if he did not use the scanner from a workplace health and safety point of view the Respondent would not know with certainty that the Applicant was on site in the event of an emergency. It was also said the company would be required to operate a different payroll system for one employee.14

[79] Mr Finlayson also said there no vacancies for the role of Factory Hand formerly occupied by the Applicant or roles similar to that role or requiring the same skill set and the company was struggling to compete with the mouldings coming in to the country from China and is assessing options to possibly downsize some parts of the business. He said the business has already dropped one shift from Melawondi production facility since Christmas (2017). 15

[80] In his amended statement in reply of 15 June 2018 the Applicant said in reference to paragraphs 23 to 26 of Skene Finlayson’s statement, that if he was reinstated he would happily use any method of signing in and signing out required provided that it does not involve collecting or using biometric data. 16 The Applicant also said that when he was dismissed on 12 February 2018 Ian (Swinbourne) also said something to the effect of Superior Wood being happy to have him back as long as he used the scanner.17

[81] The Applicant also said he would obey his employer’s directions as he has always done with the exception of the direction to provide his biometric data, and that he had every intention of continuing to act in the best interests of Superior Wood as his employer and that he wanted Superior Wood to be a successful business. 18

[82] In his amended reply statement the Applicant referred to paragraph 27 of Mr Skene Finlayson’s statement and said that the dropping of one shift occurred before he was dismissed and this only happened because they added a shift in July or August 2017 to keep up with a contract with a log supplier to process a certain amount of timber. He said once they hit the target the extra shift was no longer required. 19

[83] As stated the Applicant did not file any further evidence regarding the period since the hearing on 15 June 2018.

Hearing 10 July 2019

[84] At the commencement of the hearing on 10 July the Applicant appeared with his brother Mr Andrew Lee and Mr Curran continued to appear for the Respondent. I raised at the commencement of the hearing that I wished to address correspondence received from the Applicant regarding the provision of transcript and the nature of the way matters are conducted in the Fair Work Commission and I put on the record that the approach I had adopted in his matter was consistent with the conventional approach of the Commission. As I attempted to do that the Applicant interrupted me and advised that he wished to record the proceedings himself with a recording device. I told him not to record the proceedings and that the proceedings were being recorded by official court reporters. I then directed the Applicant that he could not record the proceedings. He continued to interrupt me and complained that I had withheld audio recordings of the earlier directions hearings. I advised that I had not and that I had agreed to their release to him.

[85] I also advised him that the Commission does not order transcript in all matters and he did not have an automatic right to be provided with transcript at no cost, but that he had a right to a written decision. Mr Lee then proceeded to argue about the cost to him. I put on the record that I had not been secretive as he had complained and I was not treating him any differently to anyone else. As I sought to continue to explain the Applicant’s brother then aggressively addressed me stating that the Applicant had heard me out. I directed Mr Andrew Lee not to speak over me. I repeated that the Applicant had been treated in the same manner as anyone else. The Applicant persisted with seeking to argue the point.

[86] I explained to the Applicant that he was complaining about a policy issue as to whether the Commission as a matter of practice publishes transcripts of unfair dismissal proceedings on its website. The Applicant continued to complain that the Commission was conducting matters away from public view. I advised the Applicant that I intended to order a copy of the transcript and I would provide it to the parties and I also advised that I had no issue with the Applicant obtaining a copy of the audio of the hearing. I also advised that until fairly recent times audio recordings were not generally available to parties.

[87] The Applicant proceeded to complain that he had to sign a non-disclosure agreement in order to obtain a copy of the audio of the hearing. I repeated that was the policy of the Commission nationally and if he took issue with it he should write to the Commission but I would not be departing from that approach. The Applicant and his brother continued to criticise the Commission and act in a generally disrespectful and discourteous manner toward the Commission. The Commission was again accused of being secretive and that there was a need to keep the Fair Work Commission accountable.

[88] I then attempted to move on. The Applicant then attempted to make a submission concerning the performance of the Commissions functions under s.577 and I advised him that I believed I had been conducting the matter in accordance with s.577 despite him not accepting that.

[89] I then raised with the Applicant the fact that he had not filed any further statements or submissions despite my having given him two opportunities to do so, specifically with regard to the period between June 2018 and the hearing on 10 July. I explained to the Applicant that if there are factual disputes about matters that the Respondent gives evidence about, and the Applicant does not give evidence, then the Respondent’s evidence will carry more weight.

[90] I explained to the Applicant that the Respondent had filed evidence in regard to the issue of trust and confidence, and that evidence may also be required on issues in connection with restoration of backpay. The Applicant stated that he had remained unemployed since the time of the hearing in June 2018. The Respondent advised it did not dispute that the Applicant has been unemployed since the hearing in June 2018 and that the Applicant had not earned any other remuneration from employment since June 2018.

[91] I also explained that in the event I decided it was inappropriate to order reinstatement I am required to consider compensation and that whilst there was evidence before the Commission as provided at the hearing of June 2018, a period of six months had not elapsed at the time of the hearing and I needed evidence concerning the full six month period after the termination concerning mitigation. The Applicant submitted that he needed to continue to seek employment to receive Centrelink. The Respondent submitted that again it did not contest that the Applicant sought to mitigate his loss for a period of six months and on that basis I did not require evidence from Mr Lee on that issue.

[92] The Applicant agreed to give evidence concerning whether he should be reinstated. The Applicant gave oral evidence that there were no issues with trust prior to his dismissal, and if he were to be reinstated it would be a continuation of his employment as previously.

[93] The Applicant was asked in cross examination about the Site Attendance Policy that was in place adduced in evidence in the hearing in June 2018. 20 It was put to the Applicant that the policy was introduced to improve safety and improve the payroll function of the Respondent. The Applicant did not accept that and said that there was no improvement on safety.

[94] The Applicant was asked if he accepted that the Respondent may have some concerns about compliance with other policies and Mr Lee said no, as long as they did not require him to provide his biometric data.

[95] The Applicant was shown a copy of the Form 51 he filed in the Commission. The Applicant accepted that he filed the Form 51. The Applicant was taken to section 1.2 and item 3 on the Form and was asked whether in making the statement at item 3 that “The Respondent was deceitful, and dishonest to the applicant” he was referring to Mr Finlayson. The Applicant accepted he was referring to Mr Finlayson.

[96] The Applicant was asked whether he accepted that Mr Finlayson as the sole director of the Respondent would be quite upset and disturbed that such a comment was made about him. The Applicant responded “Not if he thinks it’s justified”. The Applicant said he could justify it.

[97] The Applicant was asked if he accepted that if someone is called dishonest and deceitful that they would genuinely be upset. The Applicant said it depended on the context.

[98] It was put to the Applicant that if a director of a company is described as deceitful and dishonest that might affect the working relationship and there would be some reluctance to have him back in the workplace because of it. The Applicant rejected that proposition as he said he was specifically referring to Mr Finlayson’s attempt to take his biometric data without declaring what he was really doing and why he was doing it.

[99] It was put to the Applicant that he did not say that on the Form 51 and the statement (on the Form 51) was a general statement. Mr Lee said the Form 51 was a brief form.

[100] The Applicant was asked in re-examination whether he understood he needed to provide an expansive explanation of why he wanted Mr Finlayson to give evidence. The Applicant said no and it was a general guide to their line of questioning which could be expanded on later, and he agreed it was a summary of points he wanted to cross examine Mr Finlayson over.

[101] The Applicant said the statement was not intended to relate to Mr Finlayson’s overall conduct, and while he worked for the Respondent he was very complementary of Mr Finlayson’s honesty and sincerity about paying employees and did not shirk paying superannuation.

[102] After the conclusion of his evidence the Applicant then made a submission seeking to raise a matter previously dealt with at the directions hearing of 12 June 2019 concerning the Respondent being legally represented and indicated that he had intended to raise it earlier.

[103] The Applicant made a submission pertaining to legal representation for the purposes of the earlier Appeal proceedings, and that legal representation was granted without his knowledge. The Applicant appeared to also submit that this was occurring again in the matter before me. The Respondent submitted that the matter had been dealt with at the directions hearing on 12 June 2019 for this matter, however in regard to the Full Bench Appeal Mr Curran said the Applicant had asked him for, and he sent to the Applicant, a copy of an email sent to the Full Bench and copied to Mr Lee regarding leave to be represented in the Appeal. The Applicant disputed that it was not raised and said he discovered that the document was supposed to be sent to him and was not, and his opinion on legal representation was not sought.

[104] The Applicant also made a further submission regarding s.596(2)(c). I explained that I did not have power to deal with an issue taken with the matter before the Full Bench. I confirmed that I made a ruling at the directions hearing on 12 June that permission had been granted in matter U2018/2253 and still held the view that is the correct interpretation, however I went on to say that if that is wrong I would grant leave because the parties were represented for the initial hearing, the Respondent was represented by the same lawyers on Appeal and it would be more efficient for them to finish the matter, and the matter involved some complexity and if the ruling on 12 June 2019 was wrong I granted leave.

[105] After I made that ruling the Applicant sought to continue to argue the point. I explained to the Applicant that once the Commission had ruled on a matter it was not appropriate to continue to argue with the ruling of the Commission member and he could appeal that ruling if he wished. Despite my saying that the Applicant continued to seek to argue with the ruling. I told the Applicant I would not hear him any further on the issue and went on explain to the Applicant that the legislation provides that a person cannot continue to interfere with the conduct of a matter once a ruling had been made.

[106] Mr Finlayson then gave evidence for the Respondent. His third witness statement in the matter was admitted into evidence. 21 Annexed to this statement was a copy of the Form F51 sent by email to the Commission on 19 June 2019 that the Applicant was referred to during his evidence.

[107] Mr Finlayson referred to item 1.2 being the question “Why do you seek the attendance of the person(s)”, and noted the Applicants response on the Form F51 which reads:

“The respondent, as the company owner, planned and at all times controlled the process by which:

1. The applicant has his privacy breached

2. The applicant was coerced, threatened, and unfairly sacked

3. The respondent was deceitful and dishonest to the applicant;

4. The applicant should not have been dismissed.”

[108] Mr Finlayson said in his statement that he considered the comments were directed at him personally. He said he found the language used that he was deceitful and dishonest to the Applicant highly offensive and objectionable. 22

[109] Mr Finlayson said that in his 35 years of being involved in a family business, no one has ever remotely used language suggesting that he had been deceitful, and dishonest in carrying out his duties. Mr Finlayson said he prides himself on holding simple values in his working life such as honesty, integrity, decency and trust and always tries to live out those values. 23

[110] Mr Finlayson said his family has been supporting and likewise has been supported by a wonderful staff over a number of generations. He said the Group currently has over 100 staff that have been employed by the Group for over 10 years or longer. Mr Finlayson said his family had worked very hard to break down barriers between his family and the employees in the Group. Mr Finlayson said he saw “all of us” (his family and employees) as one large community supporting each other and working together to achieve goals that will benefit all. 24

[111] Mr Finlayson said if the Applicant was reinstated he would find it impossible to place trust and confidence in him given he has used inappropriate language about him and in his view the employment relationship cannot be restored. 25

[112] Mr Finlayson referred back to his statement of 9 May 2018 and in particular paragraph 27. He said there are still no vacancies within the Group of companies for the position of Factory Hand or roles similar to that role or roles requiring a similar skill set to that role or skills the Applicant has. Mr Finlayson said by “no vacancies” he meant the Group is not currently advertising or recruiting for such a role.

[113] Mr Finlayson said that the Respondent ceased using the previous manual time and attendance system in around mid-April 2018, following a period during which both the biometric scanner and the manual time and attendance system were in use. He said the manual attendance time and attendance system was used during this period until such time as the Respondent was satisfied the biometric record system was working well.

[114] Mr Finlayson said that if the Applicant is reinstated, and he continues to refuse to use the biometric scanner, it is not presently possible for the Respondent to pay the Applicant. This is because time and attendance records for the staff of the Respondent are collected only by a biometric scanner. 26

[115] Mr Finlayson said that if the Applicant refuses to use the biometric scanner and he is reinstated, then the manual time and attendance system would have to be reinstated just for the Applicant. He said it would also be necessary for head office in Brisbane to obtain information from those manual records to pay the Applicant and these measures would involve significant inconvenience and some expense. 27

[116] Mr Finlayson also gave evidence that since the proceedings were heard before the Fair Work Commission, there has been a decline in the number of hours worked by Superior Wood staff of approximately 14 full time equivalents. He said that this was due to a downturn in the residential housing market which has led to a corresponding fall in the demand for the Respondent’s products and increased imports from China of products by other suppliers, which compete with the Respondent’s products. 28

[117] Mr Finlayson said that the competing products imported from China are 15%-25% cheaper than the Respondent’s products. The increase in Chinese imports has led to increased competition, a reduction in the Respondent’s sales and a reduction in the profit margins of the Respondent. He also said that it was possible that in the near future, the Respondent may also be downsizing staff due to plans to manufacture more products off shore to better compete with Chinese imports. 29

[118] Mr Finlayson agreed that the manual time and attendance system ended in April 2018. Mr Finlayson was asked how the time and attendance system has functioned since the use of the biometric system. Mr Finlayson said the payroll system, which was one of the primary reasons for putting it in is now much more accurate compared to the manual system and the payroll function which used to take two days is now being performed in one day. Mr Finlayson said he watched it on Monday and the payroll was completed by 1pm that day.

[119] Mr Finlayson said on the workplace health and safety issue that the Respondent often has employees going from one site to another and he can see which site employees are on. He said people from Brisbane are driving to site each day and he logs on each morning to see that they have arrived. He said from his personal point of view it gives him the ability to see where people are and it is a very useful tool.

[120] Mr Finlayson said the administration office now has access to everyone on every site and if there is an evacuation there is assistance remotely if needed. He said as sole director workplace health and safety was a huge responsibility for him.

[121] Mr Finlayson said he had concerns that if the Applicant was reinstated and refused to use the biometric scanner, as he struggles to have a rule for one person and he was concerned others may come forward and want the manual system and if two systems need to be run the payroll and safety systems would not be as tight. Mr Finlayson said sawmills are risky operations and it could open a can worms for his business.

[122] The Applicant initially asked Mr Finlayson in his oral evidence when he was sacked were there any other outstanding issues and Mr Finlayson said no. Mr Finlayson was asked if the Applicant was reliable, honest and punctual. Mr Finlayson did not take issue with that but said he had little to do with the Applicant until the later part of his employment.

[123] The Applicant put to Mr Finlayson that when the fire alarm occurred (in April 2018) when the two systems were operating the protocol was to use the sign on sheets in preference to the scanner. Mr Finlayson said it was a new process coming in and he genuinely believed it was a much safer system and it is a very useful tool.

[124] The Applicant put to Mr Finlayson that if he did genuinely believe the new system was safer they would have been using the new system not the sign on sheets. Mr Finlayson said he is not debating that, but right now 17 months later the system is now showing very useful tools and if an evacuation does occur there are three people on mobile phones all assisting.

[125] The Applicant continued to press that the two systems were operating (at the time of the fire alarm) and yet they preferred the sign on sheets. The Applicant questioned Mr Finlayson whether that despite that evidence the new scanner is safer and Mr Finlayson said absolutely.

[126] The Applicant then asked Mr Finlayson to explain how it was safer and Mr Finlayson repeated his earlier evidence about remote access to who is on site, including for example people from Brisbane being at Imbil. The Applicant continued to question how that system is safer than a paper system and Mr Finlayson said he could tell who was on site from his laptop.

[127] The Applicant put it to Mr Finlayson that people can still walk past the scanner just as they can walk past the sign on sheets. Mr Finlayson said that they did find with the manual system that some people were signing in for their friends who were running late.

[128] The Applicant said that if people decide to cheat the scanner system it could still be done, and they could still walk on and off site without using the scanner system. Mr Finlayson said he didn’t think anyone would walk on to site and work if they don’t use the scanner system as they will not be paid. It was put to Mr Finlayson that it was still possible and he agreed.

[129] The Applicant put it to Mr Finlayson that someone could scan on, and leave site, and then come back later and then scan off. Mr Finlayson said it was highly unlikely but it was possible. Mr Finlayson did not accept that it was the same as the paper system because someone else could sign on and off.

[130] The Applicant put to Mr Finlayson that he had presented no evidence to show that people signed in for others. Mr Finlayson said that he gave evidence at the first hearing on this. It is apparent from paragraph 9 of Mr Finlayson’s first statement that this is correct. 30 The Applicant also put to Mr Finlayson that he did not bring any sign in books, signatures or anything else. Mr Finlayson said had records of that if the Commission wanted to see it.

[131] The Applicant then moved onto the safety issue and put to Mr Finlayson that he claimed to have introduced the system because it improved safety because he could see where staffs were, and Mr Finlayson agreed with that. The Applicant then asked Mr Finlayson whether any of his staff carry GPS trackers or anything of that nature. Mr Finlayson said he did not know.

[132] The Applicant then asked whether the new biometric data system required that staff have GPS trackers on them. Mr Finlayson replied no. The Applicant then asked how is it that Mr Finlayson knows whether a staff member has scanned in and is still on site. Mr Finlayson accepted that it did not show the location of the employee. The Applicant put it to Mr Finlayson that an employee could scan in in the morning, leave site and if there was a fire alarm he would not know where that staff member was. Mr Finlayson accepted that would be correct if the employee had left site without scanning out.

[133] The Applicant then asked Mr Finlayson how does that improve safety if he does not even know where an employee is with the new biometric scanning system. Mr Finlayson responded that he is at a loss to understand why he is not allowed to introduce something that he believes improves safety. The Applicant said that was not an answer to his question and that Mr Finlayson claimed that it (the biometric scanning system) improves safety. Mr Finlayson said if there was an evacuation and there were 50 people on site there would be multiple people who could see who was on site.

[134] The Applicant then returned to say there was an evacuation. Mr Finlayson said it was in its infancy (at that time) and he personally believed it is better than a manual system where only the people at the mill would know. The Applicant said the new scanning system was fully operational for three months (in regard to the fire alarm). Mr Finlayson said it was still on trial to 12 April 2018 and two systems were still being run.

[135] The Applicant put to Mr Finlayson that his claims of improving safety have been shown to be false. Mr Finlayson said he totally disagreed with that. He said that the Applicant was using one instance and Mr Finlayson was now saying he had multiple people able to see who is on multiple sites at any time. I observed that there had been quite a lot of evidence on the point and it was apparent that the Applicant and Mr Finlayson would continue to disagree on the matter.

[136] The Applicant then put to Mr Finlayson that he asserted that the biometric scanning system had improved payroll efficiency however a scan card would have achieved the same efficiency. Mr Finlayson said this was put to tender way back and this particular biometric data scanner was said to be the best available with the least opportunity for anything to go wrong. Mr Finlayson added that he found the deceitful and dishonest comments offensive, but when they went to put the scanners in they did get advice and they were always told it was under the employee exemption records.

[137] Mr Finlayson said on 19 August he was going before the Privacy Commission. He said the Privacy Commission had, when the matter first came up, handed down a decision that it came under the employee records exemption, so that the Privacy Commission believed they weren’t in breach of the Privacy Act.

[138] Mr Finlayson said he was confused, and he did not blatantly try to collect the Applicant’s biometric data to breach the Privacy Act. Mr Finlayson also said he said to the Applicant in a meeting that he respected the Applicant’s decision not to provide his biometric data, but could he please respect Mr Finlayson wanting to improve payroll and safety on the site. Mr Finlayson said he has received independent advice that it still does go under the employee records exemption and he is so unsure where to go from here.

[139] Mr Finlayson said that all he wanted to do was to make his site safe and if the lawyers advising him at the time had advised him, he would have done a privacy collection notice but he was told at time they didn’t need to. The Applicant asked Mr Finlayson who told him he did not have to provide privacy collection notices. Mr Curran raised the issue of legal privilege on the basis of confidential advice.

[140] Mr Finlayson said that the advice he had received was always that he was under employee records exemption. Mr Finlayson indicated he received advice from Commerce Queensland and a number of other companies who had scanners but he could not remember which ones. Mr Finlayson said that he did not get advice from the Privacy Commissioner, however he then gave evidence to the effect that he did however recently receive a written request to show cause from the Privacy Commissioner two weeks ago (prior to the remedy hearing) for an upcoming hearing on 19 August.

[141] Mr Finlayson later indicated the correspondence was from the Office of the Australian Information Commission. Mr Finlayson included in his evidence that the advice included that the Applicant’s previous application (presumably to the Office of the Australian Information Commission although it was not clear from the evidence) had been denied because it was believed prior to the Full Bench decision of the Fair Work Commission that he was covered by the employee records exemption and there had been no privacy breach.

[142] The Applicant then asked Mr Finlayson how far back the advice was received and he said 2016 or 2017 and prior to installation of the new system. The Applicant then returned in his cross examination to the efficiency of the new system versus a scan card system. Mr Finlayson was asked whether a scanning system or swipe card system would be otherwise identical in terms of efficiency. Mr Finlayson said it would probably be similar however a card can still be given to another employee.

[143] Mr Finlayson described the biometric data as an algorithm. Mr Lee initially indicated that he would not go down that track. The Applicant said the Full Bench “admitted” that it is biometric data, a fingerprint.

[144] Mr Andrew Lee then took over the cross examination and accused Mr Finlayson of supplying his brother’s employment record to the Commission without his knowledge. Mr Curran objected on the basis that the payroll records were produced pursuant to a notice to produce issued by the Applicant’s former solicitors. Mr Andrew Lee said both Mr Curran and Mr Finlayson were made aware by the Applicant that his permission was not sought.

[145] Mr Andrew Lee put it to Mr Finlayson that Mr Finlayson had gone through his brother’s employment record with a fine tooth comb. Mr Andrew Lee put it to Mr Finlayson he would have been aware if he had missed days of work, and if he had done anything else wrong, and all he did was object to the use of the biometric scanners.

[146] Mr Curran confirmed that the Respondent did not take any issue with the Applicant’s conduct or performance before the events regarding the site attendance issue. Mr Andrew Lee put it to Mr Finlayson that this goes to the heart of Mr Finlayson’s view the relationship might break down or there being no trust between his brother and the Respondent. Mr Andrew Lee put that there was no evidence that Mr Finlayson would do anything dishonest or display any kind of behaviour in that regard. Mr Finlayson said except not following what Mr Finlayson believed was a lawful instruction at that time.

[147] Mr Finlayson then went on to give evidence that for the Applicant to say that he was deceitful and dishonest is just outrageous, and since comments went public (in reference to ABC media coverage) he has received phone calls and emails calling him the scum of the earth. Mr Finlayson said he has had a number of people call him names he finds totally offensive and all he was trying to do at the time was bring in what he believed was a lawful time attendance system. He said he is sickened by what has occurred.

[148] Mr Andrew Lee asked whether Mr Finlayson had any evidence to show that what he was saying was true. Mr Finlayson said he could provide the emails if necessary. Mr Finlayson said he had encountered a personal attack.

[149] Mr Andrew Lee put it to Mr Finlayson there was no evidence to suggest the Applicant would do anything other than what he did before he was dismissed. Mr Finlayson said for him (the Applicant) to write that he was deceitful and dishonest, he did not think he understood what those words mean to Mr Finlayson. It was apparent to me that Mr Finlayson was quite emotional whilst giving evidence on this issue.

[150] Mr Andrew Lee put it to Mr Finlayson that those comments were specifically in relation to Mr Finlayson asserting that the scanner did not take a finger print. Mr Finlayson said that is not how he read it and or how it was presented to him.

[151] Mr Andrew Lee then moved his cross examination to whether the finger print scanner takes a finger print. Mr Finlayson said it takes an algorithm. Mr Andrew Lee asked whether a biometric template was equivalent to a fingerprint. Mr Finlayson responded he thought it was called a binary code, a series of numbers. Mr Andrew Lee then asked Mr Finlayson whether he was claiming that he did not know as it was his system.

[152] Mr Finlayson said it was a biometric scanner, and it takes a fingerprint and converts it to an algorithm. Mr Andrew Lee then put it to Mr Finlayson that it does take a fingerprint. Mr Finlayson said it scans your finger and takes a series of numbers but cannot replicate a fingerprint. Mr Andrew Lee put it to Mr Finlayson that it is uniquely identified. Mr Finlayson said you cannot make a replicate fingerprint from the algorithm.

[153] Mr Andrew Lee then put it to Mr Finlayson that it takes a uniquely identifying digital template. I intervened at that point of the cross examination and attempted to clarify the relevance of the line of cross examination which I understood to be that it was asserted that Mr Finlayson in fact knew the biometric scanner took a fingerprint and by him saying otherwise he was being dishonest.

[154] Mr Andrew Lee said the issue would not be lengthy if Mr Finlayson would just admit that the scanner takes a fingerprint. Mr Finlayson referred to material from Mitrefinch before the Commission in the initial hearing that said the scanner does not store a fingerprint and only stores a binary code.

[155] Mr Andrew Lee said that even the Full Bench admits that a biometric scanner takes a fingerprint and yet Mr Finlayson refuses to admit that and it is his system. Mr Finlayson was then asked whether he accepted that the direction to provide biometric data is illegal, and his site attendance policy is illegal. Mr Curran objected to the question. I indicated that the Full Bench had settled the matter with regard to the Applicant. Mr Andrew Lee wished to press the question on the basis that Mr Finlayson is still using the same site attendance policy which has been ruled to be unlawful.

[156] I indicated that the finding in the Full Bench matter pertained to the Applicant. The Applicant then posed to me the proposition from the bar table that are not other people equal to him under the law. I explained that the matter before me pertained to the Applicant and not other employees.

[157] I explained that if I decided to reinstate the Applicant, the Respondent could not give him an unlawful direction. I discouraged Mr Andrew Lee from pursuing cross examination of Mr Finlayson regarding the policy more generally. Mr Andrew Lee said that Mr Finlayson had raised a concern that if his brother returned to the site he might cause other employees to not use his fingerprint scanning system.

[158] I indicated that Mr Finlayson had raised that concern but that was speculation on the part of Mr Finlayson and I did not think that part of Mr Finlayson’s evidence was very persuasive.

[159] The Applicant said that Mr Finlayson says he respected his right to protect his biometric data but Mr Finlayson sacked him for trying to protect it. I responded to the Applicant that he had won his appeal. Mr Andrew Lee then submitted that the Full Bench did not confirm that his brother owns his biometric data. Mr Andrew Lee submitted that the Commission can claim that he won but that was not the Applicant’s view.

[160] Mr Andrew Lee then said the Full Bench denied his brother a rehearing. I advised Mr Andrew Lee that if he wished to take issue with the Full Bench decision he needed to challenge that decision.

[161] Mr Andrew Lee then put to Mr Finlayson that he introduced the system being fully aware of what it was and what it does, and he was well versed in it. It was reasonably clear that Mr Andrew Lee was again seeking to return to a line of cross examination for the purpose of showing that Mr Finlayson knew that the biometric scanner took a fingerprint. I indicated I believed the matter had already been covered.

[162] Mr Andrew Lee then returned to the issues concerning the Form 51 and asked Mr Finlayson if his brother had ever sworn at him or been rude to him. Mr Finlayson said no.

[163] Mr Andrew Lee then said Mr Finlayson said that there were no vacancies where he had worked and asked if Mr Finlayson had any evidence of that. Mr Finlayson said if he is instructed to put the Applicant on he will have to put someone else off and his manufacturing business is struggling and that is the truth. Mr Finlayson said the Applicant worked in the dry mill part of the plant, and that part of the business is particularly under attack at the moment, and Mr Finlayson said that since the Applicant left they had lost the Corinthian business ( a two million dollar contract) who have gone to imported product out of China, and the Respondent had tendered for Bunnings and they were not successful with the tender, and the moulding market is under attack and that if the Applicant had to come back he would have to put someone else off. Mr Finlayson accepted he did not tender evidence to support that.

[164] Mr Finlayson was also cross examined about whether he could use a pin number pass code without scanning his finger using the current system. Mr Finlayson said he did not know. Mr Finlayson said he understands people put in a pin number and scan their finger.

[165] Mr Andrew Lee put it to Mr Finlayson when the scanner system was first introduced that there were issues with the scanner but people were still being clocked on and off using a pin number. Again Mr Finlayson said he was not across that detail and did not know.

[166] Mr Andrew Lee then put to Mr Finlayson that he said he could pull out his phone and see who was site, and asked Mr Finlayson if he could do that. Mr Finlayson said that was in the early stages and it was meant to be the laptop and he could do that using his laptop. I asked why this was relevant. Mr Andrew Lee submitted because Mr Finlayson submitted safety had improved because he could see who was on his site.

[167] Mr Finlayson asked whether it was doubted he was telling the truth. I asked Mr Andrew Lee whether he doubted that Mr Finlayson was telling the truth and whether that was the reason for the question. Mr Andrew Lee said the question goes to the heart of whether Mr Finlayson can actually see who is for example on the Imbil site. Mr Andrew Lee said that all he has is a list of people who scanned in in the morning. Mr Andrew Lee said Mr Finlayson continues to claim that he can tell who is on site. I said that evidence had already been dealt with.

[168] Mr Andrew Lee then returned to the whether Mr Finlayson trusted his brother and asked Mr Finlayson if the Applicant was reinstated would he turn up. The Respondent confirmed it did not dispute that.

[169] I indicated that the cross examination was going over the same ground again. Mr Andrew Lee indicated that while it was going over the same ground, it was just as frustrating for Mr Andrew Lee and his brother as it may be for Mr Finlayson but that all Mr Finlayson really needed to do was to concede that Mr Lee was trustworthy and that the fingerprint scanning system does not improve site safety one iota.

[170] Mr Andrew Lee then submitted that there would be no inconvenience to the Respondent because his brother can use a pin system on the current scanner and a date stamp and time. Mr Andrew Lee then asked if they think of something else could they recall Mr Finlayson later in the day. I said that would be unusual and it would have to be for something new that had arisen.

[171] Mr Andrew Lee then wanted to open cross examination again about the introduction of the scanning system and how extensively Mr Finlayson looked into the system. I indicated to him that had already been covered.

[172] Mr Andrew Lee then asked what Mr Finlayson had told the site manager. I indicated that was not relevant. Mr Andrew Lee then asked if Mr Finlayson was aware that his brother did not want to be sacked. I said that was obvious. I said at that point that I did not think there was anything more that needed to be covered; I did not need to hear more and it appeared that Mr Andrew Lee was now just looking for more things to think of. Mr Andrew Lee said he was concerned that if Mr Finlayson leaves the stand and he does think of something else Mr Finlayson would not be available. I indicated that if he thought of another issue and it was a new issue he could ask me (about recalling Mr Finlayson) and I would consider it.

[173] Mr Curran asked only one question of Mr Finlayson in re-examination, whether it was his understanding that the way that the biometric scanner is that it scans certain points on the employees finger, it then uses an algorithm to convert that to a binary code, and that it does not scan all of the finger print and it only scans certain points on the finger.

[174] Mr Andrew Lee then interjected that Mr Finlayson understands that detail but he doesn’t understand that it takes a fingerprint or that it’s a biometric scanner. Mr Andrew Lee asked if each finger produces different points that would be a unique finger print. Mr Finlayson responded that it was as he had said.

Closing Oral Submissions.

[175] In closing the Applicant said that he was unfairly sacked and had been out of work and without employment income since February 2018. The Applicant criticised the Fair Work Commission for the manner in which his case had been handled and the Respondent for attempting to gain his biometric data by coercion and that it did take all of the other employee’s biometric data, and sacked him for protecting his.

[176] The Applicant said he did not miss a day of work in three and half years and his work record was exemplary. The Applicant further criticised the Commission for ruling in favour of the employer by default because of the time it takes, stringing out his matter and the difficulty for a self-represented a party. The Applicant submitted that how he had been treated at the hands of the Commission was a large part of what he had to endure and this has to be considered for remedy.

[177] The Applicant variously criticised Commissioner Hunt, the Full Bench and the President of the Commission.

[178] The Applicant criticised what he called non-disclosure agreements used in conciliation settlement discussions at the Fair Work Commission as objectionable. The Applicant complained that the conciliation processes at the Fair Work Commission were used as secretive and opaque hearings to delay the matter.

[179] The Applicant referred to an order for production issued by Commissioner Hunt for the Applicant’s employment record. The Applicant said that he suspected that what the Commission was looking for amongst his banking details, sign in sheets, superannuation details and his licenses and training was any reason the Commission could use against him to extinguish his case without having to argue the legal merits of it and said this highlights the hypocrisy of the Commission.

[180] The Applicant said that the Full Bench received a secret email and endorsed legal representation for the Respondent in the Appeal proceedings, going behind his back. The Applicant also complained that the Full Bench denied him a rehearing on the basis that he did not consent to the appeal being conducted without a hearing and referred to s.607 of the Act.

[181] The Applicant complained that the Full Bench refused to reinstate him and delayed this by remitting remedy to a later date under another Commissioner further delaying reinstatement or any remedy.

[182] The Applicant said his case was a case of national significance and two Commissioners, a Full Bench and the President have behaved with contempt for the notions of due process, impartiality, balance, fairness and legality.

[183] The Applicant submitted that the Commission has, under the cover of its impartiality, acted for the Respondent. Further, the Commission’s cover of independence has enabled it to represent the interests of the employer better than any legal representative could.

[184] The Applicant submitted that (Mr Finlayson on behalf of) the Respondent has argued he will lose efficiency if he reinstates him but the Respondent can allow him to use a pin number using the scanner system rather than giving a finger print scan. Finally the Applicant said there was no other evidence that Mr Finlayson could not trust him, and the evidence is the reverse.

[185] The Respondent submitted that it relied on its written outline. Mr Curran submitted that the term “inappropriate” as found in s.390(3)(a) is a broad term and its application is not limited by the circumstances previously considered.

[186] The Respondent referred to two cases where post-employment comments critical of an employer or employees of an employer went against an employee seeking reinstatement.

[187] The Respondent submitted that since the hearing (in June 2018) the Applicant has used inappropriate language directed to the Respondent’s sole director in reference to the Form 51 Application for an order requiring a person to attend before the Fair Work Commission. The Respondent submitted that this language makes it impossible for the Respondent to place trust and confidence in the Applicant to be reinstated and it is apparent the relationship has broken down and cannot be mended.

[188] The Respondent submitted that the Applicant made general statements about Mr Finlayson and there was ample space on the Form 51 for the Applicant to qualify the statement and make clear what he was referring to. The Respondent submits that it would appear the Applicant, now that these matters have been raised, seeks to suggest that what he was referring to was that that the scanner did not take a fingerprint, however the evidence is the scanner doesn’t take a fingerprint and it only scans selected points on a person’s finger and an algorithm converts that to a binary code and that binary code can’t be used to recreate a fingerprint.

[189] The Respondent submitted the Applicant’s language directed at Mr Finlayson was firstly highly inappropriate, and it had fatally wounded any prospect that the employment relationship could be restored, and even if I was to accept the Applicant’s evidence that he was in fact referring to Mr Finlayson’s comment that the scanner did not take a fingerprint, that the statement was still unjustified in that context and inappropriate, and any goodwill that existed between the parties before the statement was made has now evaporated once Mr Finlayson saw those comments. It was submitted that Mr Finlayson gave evidence that the inappropriate language makes it impossible for him to place trust and confidence in the Applicant if he is reinstated and the language strikes at the heart of the relationship such that the relationship has broken down irretrievably and cannot be mended.

[190] The Respondent also submitted that its Site Attendance Policy is of significant importance to the Respondent due to the inherent safety risks present in the wood milling operation and the instances of payroll fraud encountered by the Respondent with the manual time and attendance system, and reinstating the Applicant could result in non-compliance with the policy (and other policies) by the Applicant and other employees.

[191] The Respondent relied on a decision in Kellie Smith v Coles Supermarkets Australia Pty Ltd 31 and further a decision in Paul Johnson v BHP Olympic Dam Corporation Pty Ltd32 in support of its submission that the Applicant’s refusal to comply with its Site Attendance Policy is a basis not to reinstate as it was found in those cases failure to follow policy supported such a finding.

[192] The Respondent also relies on a decision of Deputy President Sams in David Thomas and Fredrick (Junior) Faamausili Ailua v Virgin Australia Airlines Pty Ltd t/a Virgin Australia 33 dealing with social media comments describing two managers as “...Two despicable human beings...” The Respondent referred to obiter comment34 in the decision that those comments would make it highly problematic that the trust and confidence in the employment relationship could be restored.

[193] The Respondent also submitted that it is concerned that if the Applicant is reinstated and he is allowed to use the former time and attendance system this may be used by other employees not to comply with the policy for ulterior motives.

[194] The Respondent submitted that the circumstances have changed since hearing in June 2018 and the number of staff has reduced by 14 full time equivalents since that time, due to a downturn in the residential housing market, imports from China, and potential further reductions of staff due to offshoring. The Respondent also submitted that Mr Finlayson gave evidence that if the Applicant is reinstated another employee will have to be terminated.

[195] The Respondent also submitted it is conceivable that if the Applicant is reinstated and the Respondent is required to downsize it may affect his future employment, although the Respondent was clear in stating this (the unfair dismissal) action would play no role in any future decision concerning redundancy.

[196] The Respondent also submitted that the Applicant attempted to critique the new system and people leaving the site without signing out. Mr Curran described that scenario as “an outlier”.

[197] In regard to the finger print issue, the Respondent referred to the evidence of Mr Douglas at paragraph 8 of his statement that the scanner does not record or store a fingerprint and he was the person most qualified to give that evidence as a long standing employee of Mitrefinch, the company the system was purchased from.

[198] The Respondent submitted that there was insufficient evidence to be satisfied that the scanner can be operated by a pin alone. The Respondent referred to Mr Lithgow’s statement at paragraph 3 which describes the process where someone registers the scanner by use of a pin, however there is no evidence before the Commission that the scanner can be operated by a pin alone.

[199] The Respondent finally said that the Applicant made comments about the Commission and that this is the third hearing in 18 months and as far as litigation goes that is a fairly efficient process. The Respondent submitted that notwithstanding that the Applicant was critical of the Full Bench, the Commission has acted entirely appropriately and extended sufficient accommodation to the Applicant in an appropriate manner. The Respondent said the Applicant spoke of Commissioner Hunt declaring that she worked as a Privacy Officer at the first hearing and no objection was taken by the lawyers representing the Applicant at the time.

Findings

Is reinstatement of the Applicant inappropriate?

[200] The mere fact that the position that was occupied by the Applicant has now been filled or no longer exists does not render an order for reinstatement inappropriate.³⁵ As a Full Bench of the Australian Industrial Relations Commission observed, the adoption of such “would tend to defeat the remedial purpose of the legislation.” ³⁶ However, as noted by a Full Bench of the Commission, “[r]einstatement might be inappropriate… if the employer no longer conducts a business into which the employee may be reappointed.”³⁷

[201] A Full Bench of the Commission has helpfully identified the following propositions relevant to the impact of a loss of trust and confidence on the appropriateness of an order for reinstatement:

•  Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

•  Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

•  An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

•  The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

•  The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.³⁸

[202] The Full Bench concluded that, “[u]ltimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.”³⁹

[203] I do not find either of the cases that the Respondent relied on concerning an employee’s failure to comply with a policy persuasive as the facts in this case are distinguishable. As found by the Full Bench, the Applicant was entitled not to comply with the policy in this case, and a direction to do so was an unlawful direction.

[204] I also have not placed weight on the Respondent’s submission that if reinstated the Applicant will seek to persuade others not to comply with the policy for ulterior motives. In my view this is too speculative.

[205] I also do not see the requirement for the Respondent to provide a payroll system to accommodate the Applicant if he were to be reinstated as a compelling argument against reinstatement given he is entitled not to provide his biometric data.

[206] However the Form 51 document filed by the Applicant and directed at Mr Finlayson reveals an ongoing hostility toward Mr Finlayson, the sole director of the Respondent. The evidence is that during his employment, but for his termination for failing to follow a direction since found to be unlawful, there was no indication that there were any issues that would be a cause for concern in regard to the relationship of trust and confidence between the Applicant and the Respondent. Up to the point of the matter being remitted to me the evidence to that point would have weighed in favour of a finding that reinstatement would be appropriate.

[207] However on 19 June 2019, some 17 months after his termination the Applicant filed the Form F51 in the context of a pending hearing on remedy after he had won the substantive argument that his dismissal was unfair, and included in the statement directed at Mr Finlayson that he was “deceitful, and dishonest”.

[208] In answer to the question 1.3 on the Form F51 ‘How will the appearance of the person(s) assist the Commission in reaching the decision?’ the Applicant stated that “The witness evidence would clearly identify the conduct of the respondent and its impact on the applicant.”

[209] The manner of the cross examination at the remedy hearing was at times conducted as if the question of whether the dismissal was unfair was yet to be decided.

[210] Given the Applicant’s brother was present for the purpose of assisting him it can only be assumed he was representing the Applicant’s views. Much of the cross examination of Mr Finlayson by the Applicant and his brother was directed at obtaining from Mr Finlayson an acceptance that the biometric scanning system did not improve safety or the Respondent’s payroll efficiency, and secondly an admission from Mr Finlayson that the biometric scanner takes a finger print, and not as Mr Finlayson describes it, an algorithm to convert that to a binary code, and that it does not scan all of the finger print and it only scans certain points on the finger.

[211] The Applicant has not been satisfied by his success on Appeal before the Full Bench. As much was said at the remedy hearing when Mr Andrew Lee submitted on behalf of his brother that the Full Bench did not confirm that his brother owns his biometric data, and further that the Commission can claim that he (the Applicant) won but that was not the Applicant’s view.

[212] The Applicant’s conduct is indicative of him having ongoing issues with Mr Finlayson because of the manner in which the biometric scanning system was introduced and the ongoing use of the system. The Applicant is not willing to put historical issues with Mr Finlayson behind him. From the evidence the system is currently in use by the entirety of the Respondent’s workforce. There is no doubt that as found by the Full Bench the introduction of the biometric system by the Respondent was seriously flawed when it upheld the Applicants appeal grounds 1, 2, 5 and 8. The Respondent was not exempt under the Privacy Act prior to the collection of an employee record, it did not have a policy in place, and it could not collect sensitive information without consent. The Respondent also failed to provide a notification of the collection of information.

[213] However biometric scanners are not in and of themselves unlawful. I listened carefully to the evidence of Mr Finlayson and am satisfied that despite the Respondent having been found by the Full Bench to have failed to comply with the Privacy Act and Australian Privacy Principals, Mr Finlayson believed he could follow the course he did at the relevant time based on advice he had received and also believed that the new system would improve both safety and payroll efficiency.

[214] The Full Bench decision made clear that it would be unlawful for the Respondent to seek to enforce its policy against the Applicant. Trust and confidence could have been re-established following the Full Bench decision. However I am satisfied that from the Applicant’s perspective, despite the Full Bench ruling in his favour, the issue is not resolved for him. I explained to the Applicant in the course of the remedy hearing that given the Full Bench decision I could order his reinstatement and the Respondent could not seek to require him to comply with the policy to use the scanner but that did not deter continued focus on the issue.

[215] Rather than seeing the remedy hearing as an opportunity to convince the Commission that it should be satisfied trust and confidence could be restored between the Applicant and the Respondent, the Applicant appeared to be primarily focussed on seeking concessions from Mr Finlayson regarding the biometric scanning system, and not on whether reinstatement was appropriate or otherwise. Whilst the Applicant did provide evidence on the issue of trust and confidence, and there was cross examination of Mr Finlayson on the issue, it did not appear to be the primary focus for the Applicant. I am inclined to the view that the Applicant’s desire to continue to agitate issues concerning the use of the biometric scanning system at the remedy hearing is likely to hinder any restoration of the employment relationship despite his evidence to the contrary.

[216] The strong language the Applicant directed at Mr Finlayson in the Form 51 so long after the events of February 2019 fortifies my view about that. Even if I was to accept the Applicant’s evidence that his comments regarding Mr Finlayson were confined to whether the scanner did not take a fingerprint, the statement was still unjustified in that context and inappropriate. I do not accept Mr Finlayson was being dishonest and deceitful as the Applicant stated on the issue. I accept Mr Finlayson’s evidence that what he said about the function that the biometric scanner performs is what he believed. It is consistent with what he had been told by people with supposed expertise even if the Applicant disagrees and even if the Applicant’s interpretation is correct and Mr Finlayson is wrong.

[217] It is reasonable for Mr Finlayson to feel that the Applicant’s statement about him was offensive, objectionable, and damaged goodwill that might have otherwise existed between the parties before the statement was made.

[218] There are also others factors which weigh against reinstatement. Mr Finlayson said if he is instructed to put the Applicant on he will have to put someone else off and his manufacturing business is struggling. Mr Finlayson said the Applicant worked in the dry mill part of the plant, and that part of the business is particularly under attack at the moment, and Mr Finlayson said that since the Applicant left they had lost the Corinthian business (a two million dollar contract) who have gone to imported product out of China, and the Respondent had tendered for Bunnings and they were not successful with the tender, and the moulding market is under attack and that if the Applicant had to come back he would have to put someone else off.

[219] I accept Mr Finlayson’s evidence regarding the downturn in his business. Given the Respondent has been reducing its workforce it is notable that the Applicant was engaged prior to termination as a casual and not in a permanent position.

[220] On the basis of my findings above I have concluded that the Respondent has a rational basis for loss of trust and confidence in the Applicant. To add to that, the evidence supports the conclusion that the distrust is mutual. Because of that, and the other reasons set out above, I am satisfied an order for reinstatement is inappropriate in this case.

Is an order for payment of compensation appropriate in all the circumstances of the case?

[221] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”⁴⁰

[222] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement.

[223] The Applicant submitted in its written submissions of 15 June 2018 that if the Commission considers that reinstatement is inappropriate and that compensation is appropriate in all of the circumstances, the appropriate amount of compensation having regard to all of the criteria in s 392(2) including the Applicant’s length of service with the Respondent (about 3 and a half years as at June 2018), the remuneration that he would have received had he not been dismissed ($16,696.44), his efforts to mitigate the loss suffered because of the dismissal (which were reasonable in the circumstances in reference to paragraphs 31 to 47 of the Applicant’s amended reply statement), and the amount of remuneration earned between the dismissal and the order for compensation (submitted as being nil, apart from two weeks’ pay in lieu of notice ($1,855.16), is $22,261.92 calculated on the basis of the Applicant’s average income of $927.58 per week multiplied by 18 weeks which have elapsed since the dismissal, plus a further eight weeks to compensate him for the dismissal. The Applicant submitted that there is no evidence of any misconduct which would justify reducing the amount of compensation. 41

[224] Whilst the Respondent in its earlier submissions referred to the formula in Sprigg v Licensed Festival Supermarket 42 as refined in Ellawala v Australian Postal Corporation, 43 in closing submissions at the remedy hearing it advised the Commission that it consented to the payment of six months to the Applicant. The Respondent submitted that the Applicants’ pay rate was $24.41cents including the casual loadings and the Applicant regularly worked 38 hours per week. This is consistent with the Applicant's calculation of a weekly rate based on 38 hours per week. I adopt the formula in Sprigg.

Step one

[225] There was no evidence of performance or misconduct issues that may have led to the Applicant’s employment ending prematurely. He was engaged as a regular and systematic casual employee and there was no clear evidence of his role being in jeopardy at the time of termination. He had been engaged for approximately three and a half years at the time of termination. There has been evidence of job reductions since his termination however I am satisfied it is likely he would have remained employed for at least another 12 months. That results in remuneration of $48,234.16.

Step two

[226] The uncontested evidence is that the Applicant did not earn any income in the twelve months following his dismissal. Social security payments are not included in the amount of remuneration earned.⁴⁴ The Applicant received two weeks’ notice pay at the time of termination which equates to $1,855.16. Subtracting that amount from $48,234.16 equals $46,379.

Step three

[227] There is no need to make any deduction for contingencies because the twelve month period following the Applicant’s termination expired on 12 February 2019 and that date has passed at the time of the issuing of this decision.

Step four

[228] I have considered the impact of taxation but have elected to settle a gross amount of $46,379 and leave taxation for determination.

Step five

[229] The amount ordered by the FWC to be paid to a person must not exceed the lesser of the total amount of 26 weeks remuneration or half of the income threshold immediately before the dismissal. The high income threshold as at 12 February 2018 was $142,000. Half of $142,000 is $71,000. $46,379 does not exceed half of the high income threshold, however exceeds the total amount of remuneration for any period of employment with the employer during the 26 weeks immediately before dismissal, which based on an amount of $927.58 multiplied by 26 which equals a sum of $24,117.08.

[230] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.”⁴⁵

Effect of the order on the viability of the Respondent’s enterprise

[231] There is no dispute and I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise.

Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal

[232] There was no dispute that the Applicant had taken appropriate steps to mitigate his loss. This is consistent with his evidence in the hearing in June 2018. 46 In the Applicant’s amended reply statement of 14 June 2018 he again gave evidence that since his dismissal he had been trying to get a job but opportunities are few in Gympie and the surrounding areas and was again confirmed at the hearing of 10 July 2019 without opposition.

Other relevant matters

[233] I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act.

Compensation – is the amount to be reduced on account of misconduct?

[234] I am not satisfied that there was any misconduct of the Applicant contributed to the employer’s decision to dismiss.

Conclusion

[235] I have concluded that the Applicant should be paid $24,117.08 plus 9.5% superannuation by the Respondent within 14 days of this decision being issued. An order [PR710580] will be issued separately and concurrently with this decision to that effect.

Other matters

[236] On a separate matter I must address the conduct of the Applicant and his brother throughout the proceedings before me. I have been careful to separate this matter from my considerations of the appropriate remedy, however it is still appropriate that it be addressed. Given the nature of allegations made by the Applicant against the Commission itself I have set out in some detail the nature of communications between the Applicant and the Commission prior to the remedy hearing. In the course of the matter before me the Applicant and his brother have at times conducted themselves in a manner that is inconsistent with the Fair Work Commission’s Fair Hearing Practice Note which states that parties and their representatives are required to participate in a responsible way to assist the Commission to provide a fair hearing for all parties.

[237] The practice note also requires parties to, among other things, treat the Commission and other parties/representatives with courtesy and respect. Some of the Applicant’s and his brother’s conduct could be described as merely robust advocacy which is completely acceptable however at other times they overstepped the mark. Throughout the matter before me the Applicant and his brother appeared to be fixated with the Commission’s practices for providing transcript to parties and demanded audio recordings of the directions hearings, and accused the Commission of being secretive when my approach was entirely in keeping with standard practice of the Commission.

[238] The Applicant made no attempt to bring to the attention of the Commission or the Respondent that he filed applications in the Federal Court and provided no explanation for ignoring my direction to file material concerning his Federal Court appeals. The Applicant ignored my directions, and an extension to that direction to file a statement or submissions.

[239] At both of the directions hearings and the substantive hearing before me the Applicant and his brother at times conducted themselves in a manner which displayed contempt, acting rudely, aggressively, and attempting to speak over me and seeking to continue to argue with the Commission after a ruling had been made. The tone and content of email correspondence has also been inappropriate. Allegations have been made about the conduct of Commissioner Hunt, the Full Bench, and myself which are without foundation.

[240] There is no doubt the Applicant was treated unfairly by his termination in February 2018, and the process of having to endure three substantive hearings and other administrative hearings to obtain a remedy has been a long road. However that is no excuse for the Applicant and his brother’s behaviour toward the Commission. In the course of the hearing on 10 July I sought to advise the Applicant and his brother that the legislation addresses inappropriate conduct before the Commission however I did not direct them to any specific sections of the legislation.

[241] I am not expressing a view at this stage on any specific conduct to this point, and ultimately it is not a matter for the Commission itself to determine, however if the Applicant or his brother intend to engage in further communications with the Commission or make further applications to the Commission I draw their attention to s.674 dealing with Offences in relation to the Commission so that they are now fully aware of those provisions for any future interactions they may have with the Commission.

COMMISSIONER

Appearances:

J. Lee appeared in person.

A. Lee for the Applicant.

M. Curran for the Respondent.

Hearing details:

2019.

Brisbane:

10 July

Printed by authority of the Commonwealth Government Printer

<PR710580>

 1   Applicant’s outline of submissions dated 27 April 2018 at para [72]

 2   (2004) 130 IR 446 [48] – [54]

 3   Arthur Smith and Brett Kimball v Moore Paragon Australia Ltd [2004] AIRC 57

 4   Respondent’s outline of submissions 8 May 2018 at para [39]

 5   Applicant’s reply submissions dated 15 May 2018 at para [24]

 6   Applicants reply submissions dated 15 May 2018 at para [25]

 7   (1997) 72 IR 186, 191

 8   [2014] FWCFB 7198 at paras 19-20 at [27]

 9   Respondent’s outline of submissions (Remedy) dated 26 June 2019 at pages 3 and 4.

 10   [2016] NSWIRComm 1003

 11   [2016] NSWIRComm 1003 para [108]

 12   Statement of Jeremy Lee dated 16 April 2018 at para [46] to [48]

 13   Statement of Skene Finlayson dated 9 May 2018 at para [24]

 14   Statement of Skene Finlayson dated 9 May 2018 at para [26]

 15   Statement of Skene Finlayson dated 9 May 2018 at para [27]

 16   Amended statement in reply of Jeremy Lee dated 14 June 2018 at para [26]

 17   Amended statement in reply of Jeremy Lee dated 14 June 2018 at para [27] in hearing of June 2018

 18   Amended statement in reply of Jeremy Lee dated 14 June 2018 at para [28] and [29] in hearing of June 2018

 19   Amended statement in reply of Jeremy Lee dated 14 June 2018 at para [30] in hearing of June 2018

 20   Statement of Ian Swinbourne dated 8 May 2018 attachment PS 5

 21   Statement of Skene Finlayson Number 3 dated 26 June 2019

 22   Statement of Skene Finlayson number 3 dated 26 June 2019 at para [3]

 23   Statement of Skene Finlayson number 3 dated 26 June 2019 at para [4]

 24   Statement of Skene Finlayson number 3 dated 26 June 2019 at para [5]

 25   Statement of Skene Finlayson number 3 dated 26 June 2019 at para [6]

 26   Statement of Skene Finlayson number 3 dated 26 June 2019 at para [9]

 27   Statement of Skene Finlayson number 3 dated 26 June 2019 at para [10]

 28   Statement of Skene Finlayson number 3 dated 26 June 2019 at para [10]

 29   Statement of Skene Finlayson number 3 dated 26 June 2019 at para [11] and [12]

 30   Statement of Skene Finlayson dated 9 May 2018 at [9]

 31   [2015] FWC 5446

 32   [2017] FWC 4097

 33   [2019] FWC 4464

 34   [2019] FWC 4464 para [130]

35 Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [17]

36 Smith & Anor v Moore Paragon Australia Ltd [2004] AIRC 57, [15]

37 Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [17] citing Chelvarajah v Global Protection Pty Ltd [2004] FCA 1661

38 Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [27] – [28]

39 Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [27] – [28]

40 Nguyen and Le v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198, [9]

 41   Applicants outline of submissions dated 15 June 2018

 42   (1998) 88 IR 21

 43   Print S5109

44 Shorten v Australian Meat Holdings Pty Ltd [1996] AIRC 2023, citing Mullany v Active Concrete [1995] 64 IR 237

45 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [17]

 46   Statement of Jeremy Lee dated 16 April 2018