Full Bench reverses decision awarding compensation for unfair dismissal despite Incolink payment

Full Bench reverses decision awarding compensation for unfair dismissal despite Incolink payment

A Full Bench of the Fair Work Commission has partially overturned an earlier decision of a single Commissioner who, despite finding an employee had been unfairly dismissed, ultimately had determined that no compensation was payable.

The facts in the original case were relatively straightforward.

The employee had been engaged by the Trustee for Timber Ridge Unit, which trades as Auscut, for over 17 years. Following the death of her father in January 2021, Ms T took over as Managing Director for Auscut. Shortly thereafter, Ms T introduced a revised timesheet process whereby she required employees to complete and submit weekly timesheets each Monday morning.

On 11 May 2021, she became aware one employee had not submitted any timesheets, relying on a working arrangement with one of the office staff. An argument ensued between the two, which involved considerable shouting, and later that day, Ms T gave the employee a termination letter claiming serious misconduct.

Commissioner Nicholas Wilson found that there was no valid reason for dismissal and that the employee should have been issued with a warning regarding controlling his temper and the need to comply with reasonable requests from his employer, such as submitting timesheets.

However, Commissioner Wilson determined that the employee had not suffered any financial loss as he had received $66,117 in payments from the Incolink fund, and he also determined that it was unlikely that the employment relationship would have extended beyond a maximum six-week period due to the employee’s belligerent and provocative behaviour. The employee appealed on both grounds.

With regard to the Incolink payments, the Full Bench (Vice President Catanzariti, Deputy President Asbury, Commissioner Bissett) found that Commissioner Wilson had erred in his decision.

As the employee had been terminated for reasons of misconduct, the prevailing industrial instrument defined that the employee was not entitled to redundancy payments. Therefore, the payments from Incolink in the circumstances could be distinguished from previous cases where such amounts had been included in determining compensation for unfair dismissal. As they noted, “…we do not accept, given its characteristics, that the money paid out of Incolink is remuneration earned after termination of employment although it is related to work done”.

However, the Full Bench rejected the employee’s second claim that his employment would have continued beyond the assessed six-week period. In their view, they could find no error in Commissioner Wilson’s assessment that even if he had been given a warning, he had no intention of submitting a weekly timesheet and that, in fact, the employment relationship is likely to have ended earlier than contemplated.

The Full Bench assessed the employee’s compensation at a gross amount of $9,390, including superannuation.

SE v The Trustee for Timber Ridge Unit Trust – [2022] FWCFB 43

For queries about misconduct, allegations, investigations, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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