DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Hatwell
v
Esso Australia Pty Ltd
(U2017/11683)

Unfair dismissal remedy – whether reinstatement appropriate – compensation ordered

[1] This decision concerns the question of whether an unfair dismissal remedy should be ordered in favour of Mr Michael Hatwell, whose dismissal by Esso Australia Pty Ltd (Esso) has been determined by a Full Bench of the Commission to have been unfair. There is an extensive background to this matter which I will summarise briefly.

[2] In a decision dated 2 May 2018, I dismissed Mr Hatwell’s unfair dismissal application. I found that Mr Hatwell had called Mr Travis Flens, an employee of a contractor, a ‘fucking scab’. 1 I found that this conduct contravened Esso’s harassment policy, that the requirements of the policy were reasonable, and that Mr Hatwell was contractually obliged to observe them. I also found that various other allegations put against Mr Hatwell by Esso had not been substantiated. However, I concluded that Mr Hatwell’s dismissal was not harsh, unjust or unreasonable and that his dismissal was therefore not unfair.

[3] A Full Bench of the Commission upheld Mr Hatwell’s appeal from my decision. It decided that Mr Hatwell’s dismissal was harsh, and therefore unfair. 2 The Full Bench did not disturb my factual findings. It also found no error in my conclusion that Mr Hatwell’s treatment of Mr Flens amounted to serious misconduct and that it constituted a valid reason for dismissal. However, the Full Bench concluded that Mr Hatwell’s conduct warranted a disciplinary response which fell short of dismissal.3 The Full Bench remitted to me the question of whether an unfair dismissal remedy should be granted to Mr Hatwell, and if so, the nature of that remedy.

[4] The parties filed written submissions on the question of remedy, and presented oral argument at a hearing before me on 20 December 2018. Ms Kirsteen Butler and Mr Stuart Jeffries filed statements and gave sworn evidence for Esso at the hearing. No further evidence was given by, or for, Mr Hatwell.

Submissions of Mr Hatwell

[5] Mr Hatwell seeks reinstatement. He says that reinstatement is the presumptive remedy for unfair dismissal. In this regard, he notes that s 381(c) Fair Work Act 2009 (Act) states that one of the objects of Part 3-2, which contains the unfair dismissal provisions, is to ‘provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.’ Mr Hatwell contends that reinstatement is the appropriate remedy in this case, particularly in light of the conclusion of the Full Bench that his conduct warranted a disciplinary response that fell short of dismissal.

[6] Mr Hatwell notes that s 390 of the Act prohibits the Commission from ordering the payment of compensation unless it is satisfied that reinstatement is ‘inappropriate’. He says that the Commission cannot be so satisfied in the present case. He submits that in the course of considering the broader context of his dismissal, the Full Bench observed that the circumstances ‘so clearly’ favoured a finding that the dismissal was harsh that the decision to dismiss his application for an unfair dismissal remedy was ‘manifestly unjust’. 4 He says that the situational context transformed a dismissal for a valid reason into one that was a patently harsh disciplinary response. Mr Hatwell contends that these conclusions of the Full Bench mean that now, in considering remedy, the Commission cannot or should not be satisfied that reinstatement is inappropriate. He also says that reinstatement is the remedy that best meets the justice of the case.

[7] Mr Hatwell rejects Esso’s contention that it has no trust and confidence in him. He points to the observation of the Full Bench that ‘Ms Butler as Esso’s representative was of the view that conduct of the type engaged in by Mr Hatwell did not warrant dismissal’. 5 He notes, as the Full Bench did, that Esso gave other employees, Mr Osborn and Mr Burton, first and final warnings for use of language like ‘scab’ and ‘grub’, instead of dismissing them. Mr Hatwell says that concerns about trust and confidence were not an impediment to these employees’ continuing employment, and that the position should not be different in his case.

[8] Mr Hatwell contends that the conduct which I found him to have engaged in was a ‘one-off’, and that there was no evidence of his having previously mistreated co-workers or anyone else. He had an unblemished employment record. There is no basis, he submits, for Esso now to contend that it has lost trust and confidence in him as an employee, nor is there anything else that could enable the Commission to be satisfied that reinstatement is inappropriate. He says that he should not be denied the benefit of the Full Bench’s conclusions, and that the Commission should make orders that will facilitate the rehabilitation of his career with Esso. He seeks that the Commission order Esso to reappoint him to his previous position with continuity of service and an order for lost remuneration.

Submissions of Esso

[9] Esso submits that reinstatement is inappropriate. It says that it cannot continue a viable and productive employment relationship with Mr Hatwell because it has lost all trust and confidence in him. 6 Its reasons for this are essentially twofold.

[10] First, the company contends that Mr Hatwell has demonstrated that he is unwilling to comply with Esso’s policies and directions. It says his contravention of the Working Together Policy by his abuse of Mr Flens was serious and wilful, that he understood the policy, and had invoked it himself in the past. Compliance with the policy was a condition of his employment.

[11] Secondly, Esso submits that Mr Hatwell was dishonest with the company about his treatment of Mr Flens. It says that Mr Hatwell had multiple opportunities to tell Esso and the Commission that he had abused Mr Flens. The first was at his interview with Esso on 31 July 2017, when it was put to him that he had directed abusive language to Mr Flens, which he denied. The second was when Mr Hatwell prepared his written response to Esso’s allegations on 24 October 2017, in which he again denied using the abusive language. The third opportunity was his witness statement that was filed in the Commission on 30 November 2017. And the fourth was his reply statement of 19 January 2018: Esso says that it was only then that Mr Hatwell offered more than a bare denial. It says that, after reading Mr Flens’ statement, Mr Hatwell offered an account of the altercation that largely mirrored that of Mr Flens, but without the abusive language. Then under cross-examination, Mr Hatwell continued to deny that he had used that offensive language.

[12] Esso says that, in light of the Commission’s finding at first instance that Mr Hatwell did abuse Mr Flens, and the rejection by the Full Bench of Mr Hatwell’s appeal contention that I had made a serious error of fact, the conclusion must be drawn that Mr Hatwell’s conduct in repeatedly denying the abuse of Mr Flens was dishonest. Moreover, Esso submits that Mr Hatwell wrongly impugned the credibility of Mr Flens and painted him as liar.

[13] The company says that it expects candour and honesty from its employees in accordance with its Ethics Policy, 7 and that Mr Hatwell was required by his contract of employment to comply with the policy. Esso says that Mr Hatwell was specifically directed not to mislead Esso at the commencement of the investigation,8 but that he defied this direction. It says that Mr Hatwell’s dishonesty is a sound and rational ground for Esso to conclude that all trust and confidence in him is lost.

[14] For Esso, the evidence of Ms Butler and Ms Jeffries establishes the company’s loss of trust and confidence in Mr Hatwell. Ms Butler stated that she had no confidence that Mr Hatwell would not treat either Mr Flens or other employees of contractors in the same way in the future. She said that she believed Mr Hatwell would be willing to mislead others about his behaviour. 9 She said that she considered there to have been an irreparable breakdown in the relationship. Mr Jeffries said that, where an employee has been found to have engaged in misconduct, failed to admit it, and not expressed remorse, he could not be confident that that employee will not engage in such conduct again. He said that he ‘cannot trust someone who has chosen to mislead Esso in the way Mr Hatwell has done’.10

[15] Esso contends that the company’s loss of trust and confidence in Mr Hatwell in this case should lead to a conclusion that reinstatement is inappropriate. It says that the evidence of Ms Butler and Mr Jeffries explains why Esso does not have any trust and confidence in Mr Hatwell, and contends that these explanations are soundly and rationally grounded.

[16] Three further arguments were advanced by Esso as to why reinstatement would be inappropriate. First, it said that reinstating Mr Hatwell would be futile because, were Mr Hatwell to be reinstated, it is likely that he would be dismissed for his dishonesty. 11 Secondly, it says that Mr Hatwell’s position no longer exists. Thirdly, Esso says that Mr Hatwell’s reinstatement would adversely affect its ability to manage its workforce, as it would serve to inform the workplace that harassment of co-workers and dishonesty in the course of the investigation is tolerable and does not carry the consequence of dismissal.

[17] The company contends that compensation would be an appropriate remedy. It says that, but for his dismissal, Mr Hatwell would have been dismissed for his dishonesty, and that the investigation into his dishonesty and the decision to dismiss him for it would have taken two weeks. 12 In the circumstances, Esso contends that Mr Hatwell should be awarded two weeks’ compensation, amounting to $3,412.67.

Reply submissions of Mr Hatwell

[18] Mr Hatwell says that Esso has not demonstrated that reinstatement is inappropriate. He submits that the word ‘inappropriate’ in s 390(1)(a) of the Act is not a synonym for ‘trust and confidence’ and that all the circumstances must be considered. 13 In the present case, important and relevant considerations include the fact that Mr Hatwell had 10 years of unblemished service with Esso at Longford prior to the events that led to his dismissal, and that he expected to continue his career working for Esso at Longford. There was no evidence of any other behaviour of the kind found by the Commission to have constituted a valid reason for dismissal. Further relevant considerations are that the conduct occurred in a particular industrial context at a time when the Longford workplace was abnormal, such as to constitute a material change in Mr Hatwell’s normal working environment.14

[19] Mr Hatwell contends that the significance of any alleged loss of trust and confidence is to be judged by reference to the actual impact on the workplace concerned. It must be rationally based. He says that Esso must positively establish that the employment relationship in the Longford workplace cannot be restored, and that it has failed to do so. Rather, he says that Esso’s arguments focus too narrowly on the question of valid reason, ignoring the Full Bench conclusion that he should not have been dismissed. In this regard, Mr Hatwell says that the Full Bench was aware of and took into account the finding below that Mr Hatwell breached Esso’s Working Together policy and, for that reason, had been found to have committed serious misconduct.

[20] Further, Mr Hatwell says that the Full Bench was aware that I had accepted Mr Flens’ evidence where it conflicted with his own. He contends that the Full Bench is to be taken as having concluded that the breach of policy and the misconduct did not render the employment relationship unviable, and that the Full Bench resolved the appeal from my decision including on the basis that Esso contended that Mr Hatwell had been dishonest. 15

[21] Mr Hatwell says that the Commission at first instance made no finding that he was dishonest and nor did the Full Bench, nor was any adverse credit finding made against him. He says that Esso attempts now, impermissibly, to convert my preference at first instance for the evidence of Mr Flens over his own evidence into a positive finding that he was dishonest, and that there is a clear and important distinction between the two things.

[22] Mr Hatwell submits that there is no basis for the Commission to decline to order reinstatement on the basis of futility, and that the company’s contentions that a position for Mr Hatwell does not exist, and that reinstatement would adversely affect its ability to manage its workforce, cannot be reconciled with the statutory framework or the decision of the Full Bench.

[23] The primary position of Mr Hatwell is that it is not necessary to consider compensation, because reinstatement is not inappropriate. As Esso resists reinstatement however, Mr Hatwell submits that, should the Commission need to consider the question of compensation, the application of the provisions of the Act and relevant authorities lead to a conclusion that the Commission should order the maximum six months’ pay, inclusive of superannuation, namely $68,443.07 before tax. Mr Hatwell rejects Esso’s contention that, had he not been dismissed, his employment would only have continued for a matter of weeks, and submits rather that he would have continued in employment with Esso for the rest of his career, and that this should be the foundation point of the relevant calculations.

Consideration

[24] The Full Bench has remitted to me for determination the question of whether a remedy should be granted to Mr Hatwell, and if so, the nature of that remedy. 16 I make some preliminary observations.

[25] First, as I am dealing with the question of remedy on remittal, it is appropriate that I have due regard to the decision of the Full Bench. Clearly I must carry out the task that the Bench has assigned to me and determine the question of remedy on the basis that the dismissal has been found to be unfair. But I should also have regard to the Full Bench decision in applying the provisions of the Act that concern the question of remedy, and in exercising my statutorily confined discretion in determining what remedy, if any, is appropriate in the circumstances. In this regard, I am mindful of the fact that at first instance I found Mr Hatwell’s dismissal not to be harsh, unjust or unreasonable, and consequently not to be unfair, but that the Full Bench determined that the dismissal was harsh, and accordingly unfair. In particular, the Full Bench stated that Mr Hatwell’s conduct warranted a disciplinary response which fell short of dismissal. I accept Mr Hatwell’s submission that I should approach the question of remedy from this standpoint. So much is required of me by the scheme of Part 5-1 Division 3 of the Act, and in particular ss 604 and 607.

[26] Secondly, I accept Mr Hatwell’s contention that the Full Bench considered his conduct to be less serious than did I. 17 However, I consider that the Full Bench still regarded the conduct as serious. It upheld my conclusion that it constituted a valid reason for dismissal, and did not disturb my finding that it amounted to serious misconduct. The Full Bench considered the dismissal unfair in light of all of the circumstances, and specifically those bearing on harshness.

[27] Thirdly, because the Full Bench has chosen to remit the question of remedy to me, I proceed on the basis that there is no foregone conclusion as to what remedy should be ordered. In rehearing Mr Hatwell’s unfair dismissal application on appeal and finding the dismissal to have been unfair, the Full Bench had jurisdiction to determine the remedy itself. However, the Full Bench explained that, given the passage of time and the limited evidence relevant to remedy in the proceedings at first instance, 18 it would remit the matter to me. The Full Bench clearly foresaw the possibility of further evidence on the question of remedy. I have now had the benefit of hearing further evidence and considering the detailed submissions of the parties on remedy.

[28] Finally, the statutory framework within which the question of remedy must be determined is clear, and there was no significant contest between the parties about the interpretation of this framework or the relevant authorities, although the parties differed as to how these apply to the facts of this case. Section 390 provides that the Commission may order a person’s reinstatement or the payment of compensation, subject to the jurisdictional conditions in s 390(1) being met. However, the Commission must not order the payment of compensation to a person unless it is satisfied that reinstatement is inappropriate and the Commission considers payment of compensation appropriate in all the circumstances (s 390(3)). I agree with Mr Hatwell’s contention that reinstatement is the ‘presumptive’ remedy, although I note the observation of the Full Bench in Nguyen and Le v Vietnamese Community in Australia that there is no right to reinstatement consequent upon a finding that a person has been unfairly dismissed. Rather, the Commission has a discretion as to whether any remedy will be awarded, and reinstatement will be ordered only if the Commission is satisfied that it is appropriate to do so. 19

Is reinstatement appropriate?

[29] The primary focus of argument was the question of whether it is appropriate for Mr Hatwell to be reinstated.

[30] There are several considerations that support Mr Hatwell’s contention that the Commission should order his reinstatement. Although the Full Bench decision does not presuppose any particular outcome on the question of remedy, it is significant that the Full Bench considered that Mr Hatwell should not have been dismissed. It is inherent in the nature of a remedy that it seeks to make good or abate the harm that a person has sustained. The harm in this case, on the Full Bench’s analysis, is not that there was procedural deficiency in the process leading up to dismissal, but rather that Mr Hatwell was dismissed instead of receiving a lesser disciplinary sanction for his conduct. In addition, Mr Hatwell had a good disciplinary record. He had been employed by Esso for ten years. There was no suggestion of any deficiency in the quality of Mr Hatwell’s work or the manner in which he performed it, or his relationships with others in the workplace. Furthermore, as the Full Bench noted in the course of concluding that the dismissal of Mr Hatwell was harsh, the conduct for which his employment was terminated was a single contravention of the harassment policy constituted by the abuse of Mr Flens in which Mr Hatwell called him a ‘fucking scab’. 20 There was no evidence of Mr Hatwell having abused other people in the past.

[31] These factors support the contention that Mr Hatwell should be reinstated, and Mr Hatwell’s submission that the employment relationship between Esso and Mr Hatwell can viably and productively continue.

[32] Mr Hatwell contended that another reason why reinstatement should not be considered inappropriate, or the relationship of trust and confidence undermined, was Ms Butler’s evidence in cross-examination at first instance that she would not dismiss an employee for a single use of the word ‘scab’. The Full Bench noted this evidence and said at [169] that it was plainly relevant to the question of unfairness that Ms Butler was of the view that ‘conduct of the type engaged in by Mr Hatwell did not warrant dismissal’. I take account of this. However, although Ms Butler was, as the Full Bench said, speaking about the same type of conduct as that engaged in by Mr Hatwell (using the word ‘scab’), she was not speaking about conduct that was the same as Mr Hatwell’s conduct (directing the word ‘scab’ at someone). In my assessment, the context of her evidence shows that she was talking about a situation where the word ‘scab’ was spoken but not directed towards anyone. 21

[33] Similarly, Mr Hatwell contended that another matter indicating that reinstatement is not inappropriate is the fact, noted as pertinent by the Full Bench, 22 that other employees of Esso, Mr Burton and Mr Osborn, had used the word ‘scab’ or similar epithets and received only final warnings as a disciplinary sanction, rather than dismissal. I take account of this. Mr Burton and Mr Osborne received final warnings related to various points of bad conduct, including for the use of inappropriate language. However, the findings of Esso set out in Ms Butler’s witness statement do not record a conclusion that Mr Burton or Mr Osborn directed offensive language at particular persons.23 They did not abuse anyone. Mr Osborn was found to have used offensive language within earshot of Mr S.P. but not directed at him and Mr Burton was found to have used offensive language in conversation with other Esso employees, which he admitted. I note that the warning letters provided to Mr Osborn and Mr Burton overstated these findings by saying that they had been found to have used offensive language ‘towards or about employees of contractors’, when in fact they had been found to have used offensive language only about employees of contractors. Mr Burton and Mr Osborn did engage in similar conduct as Mr Hatwell by using offensive language, but it was not the same conduct. I note that the Full Bench did not say that Mr Hatwell’s conduct was the same as that of Mr Osborn and Mr Burton.

[34] If I am wrong about the matters in the preceding two paragraphs, and Ms Butler’s evidence above is to be interpreted as contemplating conduct that is the same as or equivalent to that of Mr Hatwell, and the conduct of Mr Burton and Mr Osborne were to be regarded as not relevantly distinguishable from Mr Hatwell’s (‘the alternative view’), different weight might then need to be given to these factors. I will return to the alternative view of these matters below.

[35] In any event, in my view, taking into account Full Bench decision, Mr Hatwell’s treatment of Mr Flens should not be considered a reason why reinstatement is inappropriate. I reject the contention that because Mr Hatwell was found to have breached the Working Together Policy, he has shown he is unwilling to comply with Esso’s policy and directions, and that this grounds a conclusion that the company cannot have trust and confidence in him, rendering reinstatement inappropriate. However, other matters require consideration.

Absence of contrition and recognition

[36] In my opinion, an important factor bearing on the question of whether reinstatement is appropriate is the attitude of Mr Hatwell to the conduct that was found to be a valid reason for his dismissal. Mr Hatwell did not give further evidence in support of his contentions in relation to the question of remedy, however he did give evidence at first instance that is relevant to this matter, some of which is extracted in Mr Hatwell’s reply submission on remedy. In particular, Mr Hatwell affirmed that if he is reinstated, he has no doubt that ‘I will be able to put this behind me and work well with everybody on site’. 24 But neither here, nor anywhere else, has Mr Hatwell expressed remorse for the conduct which constituted the valid reason for his dismissal. He has not said that he was wrong to call Mr Flens a ‘fucking scab’ and that he will never do it again. He has not apologised to Mr Flens.

[37] It is not just the lack of an apology that carries significance, but the absence of any recognition that the conduct in question was unacceptable. As far as I am aware, Mr Hatwell maintains that he did not speak the abusive words to Mr Flens, contrary to my findings, which remain undisturbed by the Full Bench. I appreciate that Mr Hatwell may be concerned that an apology or statement of contrition would be incompatible with the evidence he gave before me in the liability proceeding. However, it would have been possible for Mr Hatwell to show recognition of and insight into the seriousness of the conduct without making admissions about his own actions. Mr Hatwell could have said that he wholeheartedly condemns people being called ‘scab’. He could have said that the abuse of contractors is never acceptable. He could have said that he will never treat contractors or Mr Flens in such a way. But Mr Hatwell has not said any of these things. His statement that he will put the matter behind him and work well with others may show some goodwill. But in my view this falls well short of either contrition or recognition of the seriousness of the conduct that he has been found to have engaged in.

[38] The Full Bench found that it was unfair in the circumstances to dismiss Mr Hatwell for his serious misconduct, and that he should not have been dismissed. But what is now the appropriate remedy for that dismissal is a separate question, to be considered in the context of all the circumstances. I find it difficult to see how reinstatement is appropriate in this case if Mr Hatwell does not recognise that what he did was wrong, or, at least, that the conduct that he was found to have committed (but may still deny) was wrong.

[39] Returning to the possible alternative view of Ms Butler’s evidence hypothesised at [33] and [35] above, it is clear from the passage extracted in the Full Bench decision that she was, on any view, talking about the use of the word scab ‘in and of itself’, and whether it would justify dismissal. In my view, her evidence is consistent with a position that the attitude of the employee to what he or she had done would be relevant to the decision as to an appropriate sanction, just as it is plainly in my view relevant to the question of reinstatement. As to the conduct of Mr Burton and Mr Osborne, they did not direct their offensive language to anyone; on any view of the evidence, they had no particular victim to apologise to. Had they been asked to apologise, they could fairly have asked Esso who it was they ought to apologise to, given they were not found to have directed their offensive remarks at anyone. Even if their conduct were to be considered comparable to that of Mr Hatwell for the purposes of considering whether the dismissal was unfair, their conduct is relevantly different when it comes to considering an appropriate remedy for Mr Hatwell.

[40] In my view, reinstatement is not appropriate because Mr Hatwell has not apologised, and has not acknowledged either that he did anything wrong or that the conduct he was found to have engaged in was unacceptable. This is not an abstract matter, but a practical one. Consideration of the appropriate remedy in an unfair dismissal matter should take into account the circumstances of the relevant workplace. In this connection, I note that Mr Flens still works as a contractor on site, as do other employees of the contractor UGL. If Mr Hatwell does not acknowledge the seriousness of the misconduct, there is a risk of its recurrence. Ms Butler gave evidence that she believes Mr Hatwell is a person willing to engage in intimidating and harassing conduct, 25 and that she does not have confidence that he will comply with the harassment policy in the future.26 The fact alone that Mr Hatwell engaged in that conduct once may not be enough to rationally ground those beliefs. But in the absence of any apology or other acknowledgement of the inappropriateness of the misconduct, those beliefs are well-founded. Even aside from the risk of recurrence, lack of atonement for and recognition of the misconduct provide a rational basis for Ms Butler’s conclusion that there has been an irreparable breakdown in the relationship between Esso and Mr Hatwell.27

Honesty and candour

[41] Then there is the question of Esso’s contention that Mr Hatwell was dishonest in the course of the investigation, in breach of its Ethics Policy. During the hearing of Mr Hatwell’s unfair dismissal application, the company submitted that it had a further valid reason for dismissing Mr Hatwell constituted by his dishonesty in answering questions during the company’s investigation. In my earlier decision, I stated that, in light of my other conclusions, it was not necessary for me to address that contention. 28

[42] The Full Bench does not deal expressly with this matter in its decision. Mr Hatwell contends that the Full Bench ‘is to be taken as having resolved the appeal including on the basis that Esso was contending that Mr Hatwell was guilty of dishonesty that itself justified dismissal’. 29 I do not accept this contention. The decision simply does not say this.

[43] Mr Hatwell contends that I should not now seek to revisit my earlier reasons and find something additional to criticise about his account; and that there is nothing before the Commission now that was not before me at first instance or before the Full Bench on appeal. In one sense, that is so. Now as before, there is a contention from Esso that Mr Hatwell was dishonest. But Esso says that this time they want the matter determined, in the context not of valid reason, but of whether reinstatement is appropriate. Esso submits that Mr Hatwell’s dishonesty during the investigation process is another reason why it has lost trust and confidence in him and his reinstatement is inappropriate. I agree with Esso that it is a relevant matter that must now be determined. I consider that the Full Bench expected me to consider this matter, along with all of the circumstances, in the context of determining an appropriate remedy.

[44] Mr Hatwell submits, correctly, that I did not make a finding that he had been dishonest. I did not deal with Esso’s dishonesty contention because I found it unnecessary to do so. Mr Hatwell is also correct to say that I did not make any adverse credit findings against him. He said that there is substantial difference between a factual finding that the evidence of one witness is to be preferred to that of another, and a finding that a witness has been dishonest. The former does not imply the latter. Mr Hatwell relies on the decision of the High Court in Smith v New South Wales Bar Association, 30 where the Court stated that ‘as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of evidence.’31

[45] Esso says that Mr Hatwell’s denial that he abused Mr Flens, both during the company’s investigation and in evidence before the Commission, was dishonest. 32 It submits that his dishonesty as an employee constitutes a breach of the company’s Ethics policy. In this regard, Ms Butler gave evidence that at the beginning of the interview Esso conducted with Mr Hatwell, he was told that it was against the Ethics Policy to fail to reveal, or to conceal facts, or to give statements that are untrue, and that contraventions of the policy could lead to disciplinary action.33 The company says that in view of the Commission’s findings at first instance, the only conclusion open is that Mr Hatwell was dishonest in denying the abuse of Mr Flens. For Esso, this is a logical deduction, because in the circumstances there is no other plausible explanation for the direct conflict in accounts between Mr Hatwell and Mr Flens, such as confusion or an inaccurate recollection.

[46] In my first decision, I found that Mr Hatwell abused Mr Flens in the manner alleged. I accepted Mr Flens’ evidence and rejected that of Mr Hatwell. I explained in some detail why I did so. I was comfortably persuaded that the abusive words were spoken. Findings of fact in civil matters are based on the balance of probabilities. Certainty is not usually possible, and nor is it required. Yet as noted in Smith, a finding of dishonesty in the giving of sworn evidence amounts to a finding of perjury. The court also observed that such a finding ought not to be made on the single oath of another person without any confirmatory evidence. 34 Having regard to the decision in Smith, I am persuaded that I should not make a finding that Mr Hatwell was dishonest.

[47] However, the principle in Smith applies to findings of judges and statutory decision–makers in respect of evidence given on oath. It does not apply to decisions made or opinions formed by Esso. I accept the evidence of Ms Butler that she has formed the opinion that Mr Hatwell did not display the honesty and candour required by the Ethics Policy. 35 She considers that his account of his altercation with Mr Flens was untrue, and that he had multiple opportunities during the investigation to tell the truth, but chose to mislead Esso.36 Ms Butler stated that Mr Hatwell had the opportunity to reflect on his conduct, admit it, express remorse and offer an apology to Mr Flens, and that had he done so, she would likely have come to a different view about Mr Hatwell.37 She stated that she now has no trust and confidence that Mr Hatwell would act in accordance with the Ethics policy.

[48] Mr Hatwell contended that the Commission cannot simply leave it to Esso to decide whether he was dishonest with the company during the investigation and breached the Ethics Policy. Had I been considering whether Esso’s allegation of dishonesty constituted a valid reason for dismissal, it is quite clear on the authorities that I would need to make a factual finding on whether the dishonest conduct occurred. A reason for dismissal cannot be ‘valid’ if it is not factually substantiated, and the Commission must make a finding to this effect, rather than simply decide whether the employer’s conclusion was reasonable. But in my view, the same analysis does not apply to the consideration of circumstances that affect the question of whether reinstatement is appropriate. Whereas I could not properly find there was a valid reason for dismissal on the basis that the employer reasonably believed that the employee was dishonest, I consider that I can make a finding, in considering the appropriate remedy for unfair dismissal, that Esso has reasonably formed the view that Mr Hatwell was dishonest, in breach of its Ethics Policy, and that it does not have trust and confidence in him. In this regard, I note that the Industrial Relations Court in Perkins v Grace Worldwide (Aust) Pty Ltd  38 stated that loss of trust and confidence is a relevant consideration, as long as it is rationally and soundly based; and the Full Bench in Nguyen said that whether there is a sufficient level of trust and confidence to make the relationship viable and productive is a question to be assessed with reference to the rationality of any attitude taken by a party.39

[49] Having regard to these authorities, I consider that Ms Butler’s opinion that Mr Hatwell did not display the honesty and candour required by its Ethics Policy is rationally and soundly based. She did not accept Mr Hatwell’s account of his interaction with Mr Flens. The rationality of her opinion is supported by the reasons set out in my original decision for not accepting Mr Hatwell’s account. These reasons cover a number of pages, and included the fact that Mr Hatwell had a motive to abuse Mr Flens, Mr Flens did not have a plausible motive to invent the complaint, Mr Hatwell had asked Mr Flens and another UGL contractor about their conditions of employment (which intersects with the motive I considered he had to abuse Mr Flens) and that Mr Hatwell ultimately acknowledged using the word scab on site. 40 Esso did not see any other plausible explanation for the discrepancy between Mr Hatwell’s version of events and Mr Flens’ accepted account. Ms Butler has no confidence that Mr Hatwell will comply with the Ethics Policy in the future. In this regard, I note that there is no record of other instances of contraventions of the Ethics Policy by Mr Hatwell. But the point is that Esso requires its policies always to be complied with, not just most of the time. That is what it means to comply with the Policy. Ms Butler considers that there has been an irreparable breakdown in the relationship. In my opinion, Ms Butler’s conclusions are rationally and soundly based. Reinstatement is inappropriate for this reason.

[50] Mr Hatwell contended that Ms Butler’s evidence about having no trust and confidence in him because of a breach of the Ethics Policy should not be accepted because Mr Burton and Mr Osborn had denied using abusive words, but were evidently disbelieved by Esso, as they received warnings for this conduct. Their apparently false answers were not impediments to their continuing employment. 41 However, relevant here is the distinction, discussed above, between rejecting a person’s account and concluding that the person was dishonest. Although Esso did not accept what Mr Osborn and Mr Burton said, it did not conclude that they were dishonest or that they had breached the Ethics Policy. Further, I note again the consideration discussed above that Mr Burton and Mr Osborn were not found to have directed their abuse at anyone. In addition, it is relevant that Ms Butler gave evidence of instances of Esso’s strict enforcement of its Ethics Policy and examples of cases where employees have been dismissed for breaching it.42

[51] Finally, while the principle in Smith renders inappropriate in this case a finding by the Commission that Mr Hatwell was dishonest in his evidence, it does not affect my drawing the conclusion, and finding, that he was not candid with Esso in the course of the investigation. This is relevant because the company’s Ethics Policy deals not only with honesty and integrity. It also stipulates that the company ‘expects candor from employees at all levels.’ 43 Mr Hatwell’s lack of candour is reflected in the fact that he did not give a fulsome account of his interaction with Mr Flens during the interviews with Esso. I appreciate Mr Hatwell’s submission that he had not seen Mr Flens’ evidence until he was presented with his statement, however he could have at an earlier stage given the more detailed account that he later provided. I consider that Mr Hatwell’s lack of candour is also reflected in the fact that he told Esso that he had not abused Mr Flens, when in fact I have found that he did.

[52] Mr Hatwell submitted that it was not put to him that he had been dishonest, had not been candid, or had otherwise breached the company’s Ethics Policy. However, under cross-examination in the liability proceeding, it was put to Mr Hatwell that what he had said in his statement about his interaction with Mr Flens was ‘largely a fiction’. 44 In my assessment this was put in reference to Mr Hatwell’s statement generally. But in any event, Esso’s submissions to the Commission in respect of the question of remedy on remittal, and the two statements filed by its witnesses, clearly set out Esso’s contentions on these matters. It cannot be said that Mr Hatwell had no notice of them, or was denied an opportunity to respond to them. Mr Hatwell did not give any evidence before the Commission in relation to the question of remedy. He attended the proceedings and was in the courtroom when Ms Butler and Mr Jeffries gave evidence. He had every opportunity to challenge Esso’s contentions and evidence concerning its view that he had not been honest and candid, and that he had breached the Ethics Policy.

[53] The above considerations are in my opinion a sufficient basis for me comfortably to conclude that reinstatement is not appropriate. In Perkins the Full Court of the Industrial Relations Court considered the effect of a loss of trust and confidence on the question of the ‘practicability’ of a reinstatement remedy. It stated that trust and confidence is ‘a necessary ingredient in any employment relationship’ and accepted 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’. Although Perkins was decided under the Industrial Relations Act 1988, the Court’s observations remain relevant to the question of whether reinstatement is appropriate in a particular case under the Fair Work Act. 45 In my opinion, the position of Ms Butler that she does not have trust and confidence in Mr Hatwell is rationally and soundly based, for each of the two reasons set out above. The claims of Esso that reinstatement is inappropriate because of a loss of confidence withstand the scrutiny to which the Court in Perkins said they should be subject.46

[54] In Nguyen, the Full Bench set out a number of propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate. 47 Drawing on the five points summarised in that decision, I make the following observations. Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate, but it is not the ‘sole criterion or even a necessary one’. The loss of trust and confidence is not a precondition for an order of reinstatement. Each case must be decided on its own facts. But in this case, the loss of trust and confidence is significant. Mr Hatwell has not apologised or shown an appreciation of the inappropriateness of his conduct. Esso rationally considers he was not honest during the course of the investigation, in breach of the Ethics Policy. And he was not candid with Esso in the investigation into his conduct. The person Mr Hatwell has been found to have abused still works on site, as do other persons who have the same characteristic of Mr Flens which was the subject of the abuse, namely the status of being an employee of the contractor UGL. This is not a case where the loss of trust and confidence is a mere ‘ripple on the surface of the employment relationship’. As the Full Bench said in Nguyen, in most cases the employment relationship can withstand some friction and doubt, but the present case goes well beyond this. Nor is this a case where the employer merely pleads difficulty or embarrassment as a basis to resist reinstatement.

[55] For completeness, I will address a number of remaining submissions that concerned the question of reinstatement.

[56] First, Ms Butler says that, if Mr Hatwell were reinstated, Esso would have to conduct an investigation into his dishonesty. It might be asked then how Esso contends in the present proceedings that it has already formed the view that Mr Hatwell has been dishonest. The answer is that Ms Butler has stated her view that Mr Hatwell was dishonest; but that, before terminating his employment for this reason, she would conduct an investigation. This simply recognises due process and good practice associated with disciplinary action. It does not in some way undermine the rationality of the view she holds now about Mr Hatwell’s honesty or his contravention of the Ethics Policy, or that she does not have trust and confidence in him.

[57] Secondly, Mr Hatwell says that Esso relies on the opinions of two people who did not supervise Mr Hatwell, and in particular that Mr Jeffries commenced the position he now holds in January 2018, three months after Mr Hatwell’s dismissal. In some cases, evidence on the appropriateness or otherwise of reinstatement might more persuasively come from managers closer in the supervisory hierarchy to the employee in question, but in the present matter I consider Ms Butler and Mr Jeffries to be appropriate witnesses. They have senior corporate responsibilities. They are qualified to speak about why the company has lost trust and confidence in Mr Hatwell. Other, more immediate managers might know Mr Hatwell better. But I see no reason why evidence from such persons would offer better insight into the key considerations bearing on the question of reinstatement, particularly the matters that I consider to be reasons why reinstatement is inappropriate. Ms Butler’s evidence spoke to the implications of these matters in the workplace. For example, she referred to the fact that Mr Hatwell had not expressed remorse, that Mr Flens and other contractors still work at the site, and that she is not confident that Mr Hatwell would abide by Esso’s policies. 48

[58] Thirdly, I do not accept Mr Hatwell’s submission that a conclusion that reinstatement is inappropriate would ‘set at nought’ the Full Bench’s conclusions that he should not have been dismissed, nor do I agree with the contention it would ‘effectively deny Mr Hatwell the benefit of the principal protection conferred by the statutory scheme’. A finding that a person should not have been dismissed does not carry a corollary that reinstatement is appropriate. If it did, the Full Bench could simply have made a reinstatement order itself. Instead, it remitted to me ‘the question of whether a remedy should be granted and, if so, the nature of that remedy’. 49 I do not consider my conclusion that reinstatement is inappropriate to be at all odds with the Full Bench decision. Rather, I have been guided by that decision in my approach to the question of remedy. I consider that the Full Bench expected me to undertake a careful consideration of the submissions on remedy and an evaluation of any further evidence that might be adduced.

[59] Fourthly, Esso contended that Mr Hatwell had made admissions in cross-examination to the effect that he had withheld the truth, asserted untrue or misleading facts, omitted relevant detail, and provided new information only at the last opportunity. However, he did not admit that he had not told the truth, and some of the matters referred to in this connection by Esso were in the nature of concessions made by Mr Hatwell about the accuracy or completeness of his evidence on certain points.

[60] Finally, I would note that I do not find persuasive Esso’s arguments as to the alleged futility of a reinstatement order or the non-existence of Mr Hatwell’s previous position.

Compensation

[61] Section 390(3) of the Act provides that the Commission must not order the payment of compensation unless it is satisfied both that reinstatement of the person is not appropriate, and that it considers an order for the payment of compensation to be appropriate in all the circumstances of the case. Having determined the first of these questions, I now consider the second.

[62] In my assessment, in light of the decision of the Full Bench, this is a case in which an order for compensation is appropriate. The conclusion of the Full Bench that Mr Hatwell should not have been dismissed, and its emphasis of the various considerations bearing on the question of harshness, point decisively to a conclusion that compensation should be ordered.

[63] There is no dispute about the principles that are applicable to the question of how compensation should be calculated. Compensation is intended to provide a person who has been unfairly dismissed with reparation for losses reasonably attributable to the unfair dismissal. Compensation is not intended to be punitive. 50 The amount of compensation ordered by the Commission must not include a component for shock, distress or humiliation, or other analogous hurt, caused to the person by the dismissal (s 394(4)). In determining the amount, all the circumstances are to be taken into account, including those prescribed by s 392(2) of the Act. The ‘Sprigg’ formula is to be applied to arrive at an appropriate amount.51 If this yields a figure which is excessive or inadequate, then the considerations in s 393(2) may be revisited.52 The method for calculating compensation under s 392 is also informed by the decision of the Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc53 in relation to the order in which the considerations in s 392 and other factors should be applied.

[64] The parties differed as to the manner in which these principles should be applied to the facts of the present case. To recap, Esso says that the measure of compensation should be two weeks’ pay, on the basis that it would have dismissed Mr Hatwell for dishonesty in any event, following a short investigation. Mr Hatwell contends that he would have remained employed by Esso for the remainder of his career and says that this is the appropriate marker for the calculation of compensation, which results ultimately in a compensation order, once the statutory cap is applied, of six months’ pay.

[65] Esso made no submission in respect of s 392(2)(a), and it may be inferred that any compensation order will not have an adverse effect on its viability. The length of Mr Hatwell’s service with Esso is over ten years (s 392(2)(b)), and prior to the events that led to his dismissal, he had a good employment record. Esso accepts that Mr Hatwell has taken steps to mitigate the loss suffered because of the dismissal by obtaining alternative employment (s 392(2)(d)), although it says that these took place after the time at which it would have dismissed Mr Hatwell for dishonesty.

[66] Section 392(2)(c) provides that the Commission must take into account the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed. 54 Although one cannot with any precision determine how long a person would have continued in employment but for the dismissal, s 392(c) requires the Commission to consider what would have occurred if the person was not dismissed and state a rational basis for the conclusion or hypothesis.

[67] I reject Esso’s contention that, had Mr Hatwell not been dismissed, the company would have terminated his employment for dishonesty within two weeks. In my view, the contention proceeds on a false assumption as to the likely state of affairs that would have obtained in the event Mr Hatwell had not been dismissed. Section 392(2)(c) conjures a counterfactual scenario in which the person ‘had not been dismissed’. In the setting of the present case, I consider that if Esso had not dismissed Mr Hatwell, it is likely that the company would have decided to implement some other disciplinary response short of dismissal. Its investigations into Mr Hatwell would then in my view have concluded. Had he not been dismissed, Mr Hatwell’s employment with Esso would simply have continued. But for how long?

[68] I consider Mr Hatwell’s submission that he would have remained employed at Esso for the remainder of his career to be excessive. I was not referred to any decisions in which such a lengthy period of future employment has been estimated. The longer the projected period of employment, the more speculative the estimate becomes. However, I consider that Mr Hatwell would have remained employed by Esso for a significant period. The evidence is that, save for the events surrounding the dismissal, Mr Hatwell had a good employment record, over ten years of service, and intended to remain in his employment with Esso indefinitely. In my view, it is reasonable to estimate that Mr Hatwell would have continued in his employment at the company for at least two years.

[69] Mr Hatwell submitted a schedule setting out a calculation of lost remuneration and compensation that applies the methodology referred to in Sprigg for working out financial loss for the purposes of compensation (Schedule). This takes into account the considerations above and also those identified in s 392(2)(e) and (f) of the Act. Having carefully considered the Schedule, I propose to adopt much of its methodology, save for the hypothesised length of employment with Esso, and a further matter that I discuss below.

[70] The Schedule shows the remuneration that Mr Hatwell would have earned at Esso, had he not been dismissed on 30 October 2017, up until the date of the remedy hearing on 20 December 2018. The salary figures shown take account of the 4% increase to the base rate of pay under clause 13 of the Esso Gippsland (Longford and Long Island Point) Enterprise Agreement 2017 effective from 6 June 2018. Prior to 6 June 2018, Mr Hatwell’s gross weekly earnings would have been $2,350.38 55; after this date, they would have increased to $2,438.21. This produces a figure of $141,131.66 for the period to 20 December 2018.

[71] In relation to the period of employment after 20 December 2018, the calculations in the Schedule take into account the increases of $87.83 in the base weekly rate on and from 6 June 2018 to 5 October 2019 and the increase on and from 6 October 2019 of $91.34. Mr Hatwell’s calculations proceeded on the basis of future earnings of 963 weeks of employment from 6 October 2019, that is, 21 years of employment until he reaches age 65. I have revised this calculation based on a projected employment period of 2 years from the date of dismissal, ending on 20 October 2019. This produces a figure of $170,674.70 for the period between 20 December 2018 and 5 October 2019, and $5059.10 for the period between 6 October 2019 and 20 October 2019. Together, the total amount of projected Esso earnings for the three periods is $316,865.46.

[72] To this is added Esso’s superannuation arrangements at 12% over the relevant period which equates to $38,023.85, giving a subtotal of $354,889.31.

[73] Deducted are Mr Hatwell’s post dismissal earnings of $42,211.08, being the figure submitted by Mr Hatwell in his remedy submissions dated 11 December 2018. This produces a subtotal of $312,678.23. Also deducted are projected earnings with his current employer, Alinta Gas. Here, Mr Hatwell submits that his calculations have assumed that he will successfully complete his six month probation period and remain in ongoing employment with Alinta in the future for the same period as he would otherwise have worked for Esso. In my view it is correct to adopt this approach. Future earnings with a new employer are mitigation and reduce the loss that requires compensation. The figure cited by Mr Hatwell reflects an employment period to age 65. I have divided Mr Hatwell’s total annual remuneration at Alinta of $129,375.00 56 by 52 and multiplied it by 43, this being the number of full weeks between the date of the remedy hearing and the end of the two year period on 20 October 2019. This gives a figure of $106,983.17.

[74] Then there is the question of a percentage deduction for contingencies and vicissitudes of life. The relevant principles were summarised in Roos v Winnaa Pty Ltd. 57 In short, a deduction for contingencies applies a discount to an assessment of future economic loss so as to account for future unknown matters which might adversely affect earning capacity. Such a deduction is usually applied after the assessment of the period for which the employee would have remained employed. It applies to any future estimate of loss of earnings. I consider that a deduction for contingencies should be made, and that the percentage suggested by Mr Hatwell, namely 15%, is appropriate in this case. This figure is commonly used by the Commission in assessing compensation.58 In my view, the contingency appropriately applies to all projected future earnings, not just those with the respondent employer (which reduces the compensation figure) but also to those expected to be earned with a new employer such as Alinta (which then reduces the estimated amount earned in mitigation, and therefore increases the compensation figure). But it cannot apply to past earnings, such as actual post-dismissal earnings to the date of the remedy hearing.

[75] I have considered the impact of taxation on the gross amount however it is not necessary for me to specify a post-tax amount. 59

[76] Section 392(3) of the Act states that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person, the Commission must reduce the amount it would otherwise order under s 392(1) by an appropriate amount on account of the misconduct. I note that in Haigh v Bradken Resources Pty Ltd 60 a Full Bench confirmed that the reduction for misconduct is to be applied before the application of the statutory cap. In a particular case, where the misconduct is serious, a substantial reduction in the amount of compensation may be warranted. In the circumstances, and having regard to the decision of the Full Bench, I consider that a reduction of 25% is appropriate, or $42,127.29. This gives a total of $126,381.87.

[77] This figure exceeds the statutory compensation cap. Section 392(5) provides that the amount ordered by the Commission to be paid to a person must not exceed the lesser of the amount worked out under s 392(6) (in essence, six months’ remuneration) and half the amount of the high income threshold immediately before the person’s dismissal, which in this case was $71,000. The amount of the statutory cap is expressed as a gross figure inclusive of superannuation. There is no requirement to deduct taxation from this figure. 61 As set out in Mr Hatwell’s Schedule, six months’ gross pay inclusive of superannuation is $68,443.07.

[78] In my opinion, this is the appropriate amount that Esso should be ordered to pay to
Mr Hatwell, leaving taxation to be assessed.

[79] It will be apparent from the above that, in light of the statutory cap on the amount of compensation that can be paid to a person as an unfair dismissal remedy under the Act, my estimate of Mr Hatwell continuing in employment at Esso for a further two years produces the same result as Mr Hatwell’s estimate of a further 21 years’ employment.

Conclusion on compensation

[80] The following summarises the calculation of the compensation amount:

$141,131.66 as per [70] Projected Esso earnings from dismissal to 20/12/18

+$170,674.70 as per [71] Projected Esso earnings from 20/12/18 to 5/10/19

+$5,059.10 as per [71] Projected Esso earnings from 5/10/19 to 20/10/19

= $316,865.46

+$38,023.85 as per [72] Projected Esso Superannuation

= $354,889.31

-$42,211.08 as per [73] Actual post dismissal earnings

= $312,678.23

-$106,983.17 as per [73] Projected Alinta earnings

= $205,695.06

-$53,233.40 as per [74] 15% contingency on projected Esso earnings

+$16,047.48 as per [74] 15% contingency on projected Alinta earnings

= $168,509.14

-$42,127.29 as per [76] 25% misconduct

= $126,381.85

Apply the statutory maximum of 26 weeks: $68,443.07

[81] For the reasons earlier given, I am satisfied in the circumstances that a remedy is appropriate, but that reinstatement is inappropriate. I am satisfied that compensation is appropriate in the circumstances of this case. I will order compensation in the amount of $68,443.07 with deduction of any taxation required by law, to be paid by Esso to Mr Hatwell within 28 days of the date of this decision.

[82] An order giving effect to this decision is separately issued in PR703707.

DEPUTY PRESIDENT

Appearances:

M Harding of counsel for Mr Hatwell

F Parry QC and L Howard of counsel for Esso Australia Pty Ltd

Hearing details:

2018

Melbourne

20 December

Printed by authority of the Commonwealth Government Printer

<PR704900>

 1   [2018] FWC 2398

 2   [2018] FWCFB 6092

 3   See [119], [151] and [176]

 4   At [167]

 5   At [169]

 6   Nguyen and Le v Vietnamese Community in Australia [2014] FWCFB 7198 at [28]

 7   Supplementary Statement of Kirsteen Butler dated 20 November 2018, paragraphs 15-19; Statement of Stuart Jeffries dated 26 November 2018, paragraphs 13 and 14

 8   Transcript of interview with Mr Hatwell dated 30 August 2017, R5, Annexure MM-8, p. 64; Transcript of interview with Mr Hatwell dated 31 July 2017, R7, Annexure KS-12, page 81

 9   Supplementary Statement of Kirsteen Butler, paragraphs 42 to 43

 10   Witness Statement of Stuart Jeffries, paragraphs 9 and 16

 11   See Supplementary statement of Kirsteen Butler, paragraph 48; although Ms Butler acknowledged in oral evidence that she would have to keep an open mind pending the outcome of the investigation. See also Nguyen at [17]

 12   Supplementary statement of Kirsteen Butler, paragraph 47

 13   Nguyen at [24]-[26]

 14   [2018] FWCFB 6092 at [168]

 15   Mr Hatwell’s reply submissions dated 11 December 2018, paragraph 18

 16   [2018] FWCFB 6092 at [178]

 17   Transcript of proceedings, 20 December 2018, PN323

 18   [2018] FWCFB 6092 at [178]

 19   [2014] FWCFB 7198 at [35]

 20   [2018] FWCFB 6092 at [168] quoting PN4472 to 4474

 21   Ms Butler had been asked about Esso’s conclusion that another employee, Mr Gelagotis, had used the word ‘scab’. It was put to Ms Butler that Mr S.P., the source of the allegation, did not say that Mr Gelagotis ‘used it directly to him’ (PN4469 and PN4471). She agreed that this was an important consideration. See also PN4477 to 4481.

 22   [2018] FWCFB 6092 at [169]

 23   Witness statement of Kirsteen Butler dated 20 December 2017, R8, paragraphs 101(b), 105, 117.2(a) and 118 (AB1483-4, 1487)

 24   At paragraph 5

 25   Supplementary statement of Kirsteen Butler, paragraph 43

 26   Ibid at paragraph 41

 27   Ibid at paragraph 41

 28   [2018] FWC 2398 at [238]

 29   Mr Hatwell’s reply submissions on remedy, paragraph 18; see also transcript of proceedings, 20 December 2018, PN352

 30   (1992) 176 CLR 256

 31   Ibid at 268 per Brennan, Dawson, Toohey and Gaudron JJ

 32   Esso submissions on remedy, paragraph 10

 33   Supplementary statement of Kirsteen Butler, paragraph 31

 34   (1992) 176 CLR 256 at 268

 35   Supplementary statement of Kirsteen Butler, paragraph 26

 36   Ibid, paragraphs 23 and 33

 37   Ibid, paragraph 28

 38   (1997) 72 IR 186 at 191

 39   Nguyen, at [28]

 40   See [122] to [136]

 41   PN662-663

 42   Supplementary statement of Ms Butler, paragraphs 21 and 22(a) to (f)

 43   Ibid, paragraph 15; and KB60

 44   PN1050

 45   Nguyen at [22]

 46   Perkins, above, at 191

 47   At [27]

 48   Supplementary statement of Kirsteen Butler, paragraphs 26-29, 40-41

 49   [2018] FWCFB 6092 at [178]

 50   Kable v Matilda Greenbank [2015] FWCFB 3512 at [17]

 51   See Ellawala v Australian Postal Corporation (AIRCFB, Print S5109, 17 April 2000) at [33]; and see Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. [2013] FWCFB 431

 52   Smith v Moore Paragon Australia Ltd (2004) 130 IR 452, [32]

 53   [2013] FWCFB 431

 54   Ellawala at [59] and [60]

 55   It should be noted that the figure of $2,350.38 is the amount of Mr Hatwell’s average earnings for the 3 year prior to his dismissal

 56   Annexure E to Mr Hatwell’s reply submissions on remedy

 57   [2018] FWCFB 7394 at [36] and [37].

 58   See Ellawala, above

 59   Mr Hatwell’s reply submissions on remedy, paragraph 43.

 60   [2014] FWCFB 236

 61   Ellawala, above, at [72]