[2013] FWCFB 5205 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
SENIOR DEPUTY PRESIDENT O’CALLAGHAN |
ADELAIDE, 30 JULY 2013 |
Appeal against decision [2013] FWC 2653 of Commissioner Bissett at Melbourne on 10 May 2013 in matter number U2013/13624 - deduction for failure to mitigate losses - discretion available to Commission.
[1] This is an application for permission to appeal, and, if that permission is granted, an appeal against a decision of Commissioner Bissett 1 in which she found that the termination of Mr Veal’s employment was unfair and awarded compensation in lieu of reinstatement. The appeal is directed at the quantum of the compensation awarded by the Commissioner.
[2] Section 400 of the Fair Work Act 2009 (the FW Act) requires that the Full Bench must refuse permission to appeal unless it is satisfied that, firstly, it is in the public interest to grant that permission and further, if the appeal is based on an alleged error of fact, that error is a significant error.
[3] Mr Veal contends that the Commissioner’s decision to reduce the quantum of compensation otherwise being considered by 50% because she was not satisfied that he had actively mitigated his losses reflected an error of fact. Secondly, Mr Veal contends that the Commissioner’s decision reflected an error of law in that she failed to follow existing authorities on the question of an applicant had discharged his or her obligations to mitigate loss by establishing a small business instead of finding suitable alternative employment.
[4] The Commissioner’s conclusion with respect to Mr Veal’s mitigation efforts are set out in her decision in the following terms:
“[129] I am not satisfied the Applicant has taken positive steps to mitigate his losses (s.392(2)(d)). He has rejected a number of jobs selling products he ‘was not aware of’ or where he ‘didn’t think there was much future’. Instead he decided to invest in a business that has a debt problem.
[130] I am not convinced that I should accept the Applicant’s decision to invest in a company in debt as an effort by the Applicant to mitigate the loss he suffered. Rather, it seems to me, the Applicant has compounded his loss. Whilst this may turn into a positive investment for him in the future, it suggests a decision not to actively mitigate his loss at the time of his dismissal.”
(References removed)
[5] We are satisfied that these conclusions were open to the Commissioner on the evidence before her and do not disclose any significant error of fact, or an error of law. Had the applicant sought to bring further evidence on the issue, it was open to him to do so, but the limited evidence before the Commissioner means that her findings are clearly sustainable. Further, the decisions of this Commission and its predecessors relative to the recognition of mitigation efforts do not identify or mandate a single specific approach or formula relative to this discretionary issue. There is no error of principle. The Commissioner considered the factors in s.392. Her conclusion with respect to s.392(2)(d) is within the discretion available to the Commission to take account of mitigation efforts in a manner which reflects the evidence about a particular situation.
[6] Consequently, we are not satisfied that Mr Veal has established either an arguable case of error on the part of the Commissioner, or that a grant of permission to appeal is appropriate in the public interest. In these circumstances s.400 requires that permission to appeal is refused. The appeal is dismissed accordingly.
SENIOR DEPUTY PRESIDENT
Appearances:
G Jardine counsel for the appellant.
A Maher counsel for the respondent.
Hearing details:
2013.
Melbourne:
July 17.
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