The concept of discretion is very important in unfair dismissal cases and is the foundation for the proposition that while there may be a valid reason to terminate the employment of an employee it may nevertheless be unjust to dismiss the employee notwithstanding that there may be a valid reason to do so; the very essence of discretion.
“Conclusion
[139] The Applicant has made a mistake. Based on his conduct during the investigation and
his evidence, I am satisfied that the Applicant has learnt his lesson, was truly sorry for his
actions, and will not be undertaking any activity which may be regarded as demeaning towards
women, or which is contrary to the Respondent’s policies in the future.
[140] I have previously found that the Respondent had a valid reason to terminate the
Applicant based on its investigation and the application of its policies.
[141] However, the decision of Mr Anderson to terminate the Applicant was based on Mr
Anderson’s misunderstanding of the evidence. Mr Anderson failed to pay close attention to the
identity of who posted what video, photo or meme. As a result, the Applicant was attributed to
more posts than he actually posted.
[142] The Applicant was thoroughly investigated and ultimately dismissed on inaccurate
information and dealt with substantially differently than Mr Gregory for similar
misdemeanours. As a result, I find that the Applicant’s termination was unjust and
unreasonable.
[143] I have adopted the obiter in Rose v Telstra and Bobrenitsky v Sydney Trains.
[144] I am satisfied that the Respondent has not established the nexus between the out of hours
posts of the Applicant and his employment. I do not accept that the occasional post about a
work situation into the Group where 39% of its participants are non-Respondent employees
creates sufficient connection to the workplace to sustain the Respondent’s argument that the
Group is work-related. Further, the Applicant had no control over when the other employees in
[2023] FWC 907
40
the Group would view his posts. As a result, I find that the Respondent cannot rely on their
findings in relation to these posts.
[145] Relevantly, the majority of the Applicant’s posts were made outside of work hours. The
Applicant is entitled to a private life and the Commission does not sit in moral judgement of
the Applicant’s conduct in his private life.
[146] However, the Applicant did send one post whilst at work on day shift. I am surprised
that the Applicant had time to send this post but the Respondent did not raise this as an issue.
No offense was taken by Mr Pakes in relation to this post. In the context of the employees,
including Mr Pakes, regularly having a humorous shot at one another, this post is funny. The
post certainly doesn’t warrant the penalty of termination.
[147] The Applicant posted a photo of a colleague taken in the carpark of the workplace and
posted a photo of a bike which, in context, was humorous and unoffensive. Neither
misdemeanour warrants the Applicant being terminated.
[148] Adopting the reasoning in Byrne v Australian Airlines:
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it
is disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
(My emphasis)
I am satisfied and find, for the reasons stated above, that the Applicant’s termination was harsh,
unjust and unreasonable.
[149] I find that the Applicant was unfairly dismissed.
Remedy
[150] Having found that the Applicant has been unfairly dismissed, I now turn to the issue of
an appropriate remedy.
[151] I have taken into account all of the submissions that have been provided by the parties
in relation to remedy and I have attached the appropriate weight to the evidence of the witnesses.
[152] The Applicant seeks to be reinstated. The Respondent submitted that reinstatement
would be inappropriate.
[153] The relevant provisions of the Act in relation to a remedy for an unfair dismissal are:
[2023] FWC 907
41
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the
payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal
(see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under
section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate;
and
(b) the FWC considers an order for payment of compensation is appropriate
in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s
employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was
employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the
dismissal is no longer a position with the person’s employer at the time of the
dismissal; and
(b) that position, or an equivalent position, is a position with an associated
entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
[2023] FWC 907
42
(c) appoint the person to the position in which the person was employed
immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to
do so, the FWC may also make any order that the FWC considers appropriate to
maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if
subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to
do so, the FWC may also make any order that the FWC considers appropriate to cause
the employer to pay to the person an amount for the remuneration lost, or likely to have
been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the
FWC must take into account:
(a) the amount of any remuneration earned by the person from employment
or other work during the period between the dismissal and the making of the
order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the
person during the period between the making of the order for reinstatement and
the actual reinstatement.”
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the
person’s employer at the time of the dismissal pay compensation to the person in lieu of
reinstatement.
Criteria for deciding amounts
[2023] FWC 907
43
(2) In determining an amount for the purposes of an order under subsection (1), the
FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have
been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the
person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment
or other work during the period between the dismissal and the making of the
order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person
during the period between the making of the order for compensation and the
actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s
decision to dismiss the person, the FWC must reduce the amount it would otherwise
order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1)
must not include a component by way of compensation for shock, distress or
humiliation, or other analogous hurt, caused to the person by the manner of the person’s
dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1)
must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the
dismissal.
(6) The amount is the total of the following amounts:
[2023] FWC 907
44
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during
the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so
employed during any part of that period—the amount of remuneration taken to
have been received by the employee for the period of leave in accordance with
the regulations.”
[154] In Perkins v Grace Worldwide (Aust) Pty Ltd (Perkins),
34 the Full Court of the Industrial
Court said:
“Trust and confidence is a necessary ingredient in any employment relationship. … So we
accept that the question whether there has been a loss of trust and confidence is a relevant
consideration in determining whether reinstatement is impracticable, provided that such
loss of trust and confidence is soundly and rationally based.
At the same time, it must be recognised that, where an employer, or a senior officer of
an employer, accuses an employee of wrongdoing justifying the summary termination
of the employee’s employment, the accuser will often be reluctant to shift from the view
that such wrongdoing has occurred, irrespective of the Court’s finding on that question
in the resolution of an application under Di 3 of Pt VIA of the Act.
If the Court were to adopt a general attitude that such a reluctance destroyed
the relationship of trust and confidence between employer and employee, and so
made reinstatement impracticable, an employee who was terminated after an
accusation of wrongdoing but later succeeded in an application under the Division
would be denied access to the primary remedy provided by the legislation.
Compensation, which is subject to a statutory limit, would be the only available
remedy. Consequently, it is important that the Court carefully scrutinise any
claim by an employer that reinstatement is impracticable because of a loss of
confidence in the employee.
… It is rare for any human being to have total trust in another. What is important in the
employment relationship is that there be sufficient trust to make the relationship viable
and productive. Whether that standard is reached in any particular case must depend
upon the circumstances of the particular case. And in assessing that question, it
is appropriate to consider the rationality of any attitude taken by a party.
It may be difficult or embarrassing for an employer to be required to reemploy a person the employer believed to have been guilty of wrongdoing.
The requirement may cause inconvenience to the employer. But if there is such a
requirement, it will be because the employee’s employment was earlier terminated
[2023] FWC 907
45
without a valid reason or without extending procedural fairness to the employee.
The problems will be of the employer’s own making. If the employer is of even
average fair-mindedness, they are likely to prove short-lived. Problems such as this
do not necessarily indicate such a loss of confidence as to make the restoration
of the employment relationship impracticable.”
(My emphasis)
Consideration
[155] I have taken into account the evidence of Mr Pakes in relation to the possible
reinstatement of the Applicant:
“You don’t suggest, do you, that you couldn’t work with Mr Pelly in the future?—I’ve
worked closely with Mr Pelly as a firefighter and also as the regional manager, and in
my honest view and opinion, if that was to occur, I believe that Mr Pelly would be very
professional, and I would also be professional returning him back to the workplace. I
don’t see any issues with that, no.”35
I regard Mr Pakes as a witness of credit, who gave his evidence without fear or favour and who
clearly has a good relationship with his employees.
[156] I have taken into account that the Applicant moved his family from Victoria five years
ago to join the Respondent and that he would have to move once again if he wishes to continue
his fire fighting career on a full time basis.
[157] Further, on the basis that Mr Gregory remains employed and my earlier finding in
relation to differential treatment, the unfairness to the Applicant would be further exacerbated
if the Applicant was not reinstated. I have taken this into account.
Conclusion
[158] Based on the evidence of Mr Pakes, I am satisfied that the employment relationship can
be re-established between the Applicant and the Respondent. As a result, the Applicant is
entitled to the primary remedy under the Act.
[159] I hereby Order that the Applicant be reinstated to his former role of Qualified Leading
Firefighter at HMAS Albatross in accordance with s.391(1)(a).
[160] I hereby Order that the Applicant maintain his continuity of service from the date of his
termination in accordance with s.391(2).
[161] The Applicant breached two policies of the Respondent. These actions cannot be
condoned, especially in relation to the publication of the photo in the carpark. The photo itself
was innocuous, but it may not have been. In accordance with s.391(3), I hereby Order that the
Applicant be backpaid to the date of his termination, minus one months’ pay for the breach of
policy and any monies earned by the Applicant since his termination. If the parties are unable
[2023] FWC 907
46
to agree as to the quantum, either party can make application to the Commission to assist in
resolving the matter.
[162] I so Order.”
Pelly v Ventia Pty Limited [2023] FWC 907 delivered 18 April 2023 per Riordan C