Fair Work Act 2009
s.394—Unfair dismissal

Ming-Lan Chiu
v
Liebherr-Australia Pty Ltd
(U2022/2152)

Application for an unfair dismissal remedy

1 The issue

[1] Ms Ming-Lan Chiu (the Applicant), a former employee of Liebherr-Australia Pty Ltd (the Respondent), lodged an unfair dismissal application on 18 February 2022. 1 At the time of her dismissal, the Applicant was employed as a store person. While the matter proceeded to conciliation, it was unable to be settled. This is perhaps unusual given the events that unfolded.

[2] The Applicant’s employment was terminated by letter dated 31 January 2022. That letter stated that the reason for the Applicant’s dismissal was her refusal to comply with the Western Australian State Government’s mandatory COVID-19 vaccination requirements. 2 The Respondent submitted that based on various communications issued by the Western Australian State Government in late 2021, it had formed the view expressed in the letter of termination. The letter further set out:

a) The State Government’s mandatory COVID-19 vaccination policy applies to Liebherr Australia’s employees in Western Australia. Consequently, our employees in Perth are required to be fully vaccinated (i.e., two doses) by no later than 31 January 2022, unless exempt, and must comply with the mandatory booster vaccination (i.e., third dose) requirements.

b) Your role has been (identified) as being a role for which COVID-19 vaccination is mandatory. Accordingly, you are required to comply with the mandatory vaccination policy (outlined above), unless exempt. 3

[3] The ‘directions’ that had been in force relevant to the Respondent business were the Critical Business Worker Restrictions on Access Directions and the Resources Industry Worker (Restrictions on Access) Directions (No 2) (the Directions), 4 and whilst the Respondent held the view that at the time of the dismissal there was a valid reason for dismissing the Applicant, its position had now changed.

[4] The Respondent accepts that the Directions did not prevent the Applicant from attending work at her usual place of work whilst unvaccinated against COVID-19. That place of work was a warehouse which stored parts for mining equipment. The Respondent therefore concedes that on an objective analysis of the relevant facts, there was no valid reason for the Applicant’s dismissal and as such her dismissal was harsh, unjust or unreasonable. It follows, that the Respondent accepts that the Applicant was unfairly dismissed under s 385 of the Fair Work Act (2009) Cth (the Act).

[5] In order to save costs and time to the parties and to avoid inconvenience to the Commission, the Respondent proposed that the Commission make a determination in relation to s 385 of the Act, based upon its concession therefore negating the necessity for a hearing.

[6] The Respondent further noted that it did not oppose orders being made for reinstatement or compensation in favour of the Applicant. Albeit it acknowledged that the Applicant had not sought reinstatement in her application. To again save costs and time, the Respondent advised that it was content for the Commission to make a determination on remedy based on the material filed, again without the need for a hearing.

[7] Having considered the Respondent’s concession and having contemplated whether she still wished to proceed to hearing, the Applicant informed the Commission that she was content to have the matter determined on the papers. An opportunity was provided to both parties to file any additional material that they wished to rely upon with respect to remedy.

[8] The Respondent expressed no desire to cross examine the Applicant on her evidence in respect of remedy but respectfully sought to draw the Commission’s attention to two statements that the Applicant had made in her evidence. Those statements were:

a) under the question ‘[W]hat attempts have you made to find another job since you were dismissed?’ the Applicant replied:

I have not applied for any job due to the Unfair Dismissal case and the considerable constraints it presents. The process is highly demanding of my time and limited resources, but I am determined to obtain Justice. I do believe on the True Truth Can Stand, but am fully aware of, and committed to the challenges involved no-matter how all-encompassing they are for me.

b) under the question ‘[H]ave you found any other work since you were dismissed?’ the Applicant replied:

No box ticked in response.

[9] Shortly stated, I have concluded that the Applicant’s dismissal was harsh, unjust, or unreasonable, and as such, have awarded compensation.

2 Background

[10] The broader context and events leading to the conclusion of the employment were as follows.

[11] The Applicant began working for the Respondent on 23 November 2020.

[12] On 16 December 2021, the Respondent informed the Applicant of her annual salary increase and that she was eligible for a range of additional benefits, which included five days ‘Bonus Leave’.

[13] In response to the Western Australian Government’s announcement that some workers would be required to be vaccinated against COVID-19, the Respondent identified that the Applicant’s position was a role that required compliance with the Directions, unless the Applicant could provide evidence of a medical exemption.

[14] By letter of 18 January 2022, Mr Paul Hyham, Regional Manager – Customer Support, Mining, wrote to the Applicant regarding the COVID-19 vaccination and the Directives. Briefly stated, the letter effectively communicated the following:

a) on 2 December 2021, Mr Hyham advised that all LAP employees in ‘Group 2’ would be required to comply with the State Government’s mandatory COVID-19 vaccination policy. Employees are therefore required to have their first dose of the COVID-19 vaccination by 31 December 2021 and are to be fully vaccinated by 31 January 2022, unless exempt.

b) failure to comply with the Directions will result in access to the workplace being revoked;

c) by letter of 13 December 2021, the Respondent advised that some of its clients required persons to be fully vaccinated to access their sites and therefore requested that you provide evidence of your vaccination which had not been provided;

d) as per your contract of employment, your role is based in Perth but from time to time you may be required to travel, including interstate, to remote areas and overseas, in order to perform your duties and therefore you must:

i. obtain and maintain a right to access and perform your duties at any customer site(s) you are sent to perform work at; and

ii. comply with directions given to you by LAS or its agents.

[15] The letter notified the Applicant that she was required to participate in a telephone meeting to discuss her vaccination status on 20 January ‘2021’ (presumedly 2022). It further noted, that the Applicant was welcome to bring a support person.

[16] It appears that a meeting between the Applicant and a representative(s) of the Respondent did take place on 20 January 2022. Thereafter, Mr Hyham issued a letter of 25 January 2022, that observed the Applicant declined to disclose her vaccination status and indicated that she had no intention of disclosing her vaccination status to the Respondent in the future. The letter highlighted that the Applicant had been provided with reasonable notice, support and time to comply with the mandatory COVID-19 vaccination requirements. The letter continued that given her decision not to comply with vaccination requirements, the Applicant was not ready, willing and able to work, and her employment may be terminated. The letter raised three issues and requested that the Applicant respond to each. Those issues included responding to the possibility of dismissal and explaining why the Applicant thought her employment should not be terminated. The response was to be in writing and provided to the Respondent by 28 January 2022.

[17] The Applicant responded to the Respondent’s letter of 25 January 2022, by letter of 27 January 2022, highlighting that the Respondent’s requirement that she be vaccinated was an arbitrary variation to her employment contract, that she did not consent to the disclosure of private medical information, that mandating a vaccine may be considered discrimination, and to the extent that she was unable to work as a result of any unlawful termination, she would pursue a damages claim for constructive dismissal.

[18] The Respondent requested the Applicant to attend a meeting to discuss the outcome of the Applicant’s response. By email dated 31 January 2022, the Applicant expressed she was not willing to meet with to discuss the situation further. By letter of 31 January 2022, the Respondent terminated the Applicant’s employment with two weeks payment in lieu of notice.

[19] The Respondent noted that due to the nature of the Applicant’s role as a store person, it was not practicable for her to perform work remotely (e.g. from home) on an ongoing basis.

[20] Following the Applicant’s dismissal, the Applicant wrote to the Respondent by email dated 15 February 2022, noting that she had not received her five days Bonus Leave, which the Applicant considered should have been provided. By email dated 21 February 2022, the Respondent explained that the Bonus Leave could not be paid out as it was an entitlement to be used within the year it was given and whilst it showed up on a payslip such as other entitlements like personal leave, it was not paid out on termination (as reflected in the Respondent’s policies).

3 Applicant’s submissions

[21] The Applicant submitted that she had been unfairly dismissed. As the Respondent has agreed with this contention, I consider that there is little necessity to traverse the Applicant’s further submissions on this point. However, I would observe that several of the arguments relied upon by the Applicant would not have assisted her in advancing her case were the Directions applicable to her. This includes assertions regarding a unilateral variation of her employment contract, that her choice regarding vaccination was negated, that she should not have been compelled to participate in an experimental treatment, that COVID-19 vaccinations have only provisional approval, and that she had been discriminated against. Briefly stated, the Applicant’s submissions regarding merit were in inchoate.

[22] Turning to remedy, the Applicant sought both an apology and compensation in the amount of 26 weeks’ pay. In respect to the remedy of reinstatement, the Applicant explained that she did not want her job back for several reasons.

[23] The first, was that the Respondent had taken punitive action against the Applicant for no apparent lawful reason. The Applicant explained that the Respondent had not provided her with her five days Bonus Leave, which in her view should have been provided to her on 1 January 2022 – noting that she was on leave between 4 January 2022 and 30 January 2022. Furthermore, it had taken the Respondent four working days for it to advise the Applicant why it had denied her payment for the five days of Bonus Leave. The Applicant pressed that the four-day delay in providing the explanation was punitive in effect as it directly targeted the 21-day timeframe for lodging an unfair dismissal application.

[24] The second, was that the Respondent had discriminated against the Applicant on the basis that Mr Hyham had continually stated to the Applicant that unvaccinated employees would be prevented from entering the workplace eventually. The Applicant submitted that this made her feel cast aside and uncared for.

[25] The third was that the Respondent had bullied the Applicant. And lastly, the Applicant’s concerns had been ignored in respect of her health and safety issues and her working rights.

4 Initial matters to be considered

[26] Section 396 of the Act requires that I decide four matters before considering the merits of the Applicant’s application. There is no dispute between the parties concerning these matters, and I am satisfied of the following. First, the application was made within the 21-day period required by s 394(2) of the Act. Second, the Applicant was a person protected from unfair dismissal, as she was covered by the Storage Services and Wholesale Award 2020 or otherwise earnt less than the high income threshold. 5 Third, the Applicant’s dismissal was not a case of genuine redundancy. Fourth, no question of compliance with the Small Business Fair Dismissal Code arose.

5 Unfair dismissal

[27] The Respondent has conceded that that the Applicant has been unfairly dismissed. This concession however does not detract from the statutory requirement imposed by s 385(b) that the Commission must reach a state of satisfaction that a dismissal was harsh, unjust, or unreasonable. The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd by McHugh and Gummow JJ as follows:

.... 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.⁶

[28] In considering whether a dismissal is unfair, the Commission must consider the matters specified in s 387, including whether there was a valid reason for dismissal and any other matters the Commission considers relevant.

[29] Section 387 of the Act contemplates that the Commission will undertake an overall assessment as to the nature of the dismissal and in so doing, the criteria in s 387 must, where relevant, be weighed up in totality.

[30] For the reasons that follow, the Applicant’s case turns on whether there was a valid reason for her dismissal, and whether there were other matters of such relevancy that they render the Applicant’s dismissal as harsh, unjust or reasonable. It is uncontroversial that the Applicant was afforded procedural fairness in respect of having been informed of the reason for her dismissal and the opportunity to respond to the same. Further, the procedure adopted by the Respondent concerning the Applicant’s dismissal was unaffected by its size or lack of internal human resources specialists. Poor performance clearly was not in issue.

[31] However, in the absence of a valid reason for the Applicant’s dismissal, it is difficult to conceive how a dismissal in such circumstances could not be anything but unfair. Clearly the Respondent formed the view that it adopted an incorrect interpretation regarding the scope of the Directions and their application to the Applicant. It conceded that it was in error and on that basis acknowledged that it did not have a valid reason for dismissing the Applicant. It is noted that during the Applicant’s employment she was never required to perform work at a mining site.

[32] Vvalid’ in this context, generally refers to whether there was a sound, defensible or well-founded reason for the dismissal.⁷ Such a reason is one that is valid in the sense that it was both sound and substantiated. In circumstances where the Respondent contends it was absent a valid reason for dismissal and there is no evidence before me to suggest the contrary, I am content to find that the Respondent did not have a valid reason for dismissing the Applicant on the basis of her inability to meet the inherent requirements of her role. Clearly, at all material times the Applicant was able to meet the inherent requirements of her position.

6 Conclusion

[33] Having taken into account each of the matters specified in s 387 of the Act and noting that I am satisfied that the Respondent did not have a valid reason for dismissing the Applicant based on her inability to meet the inherent requirements of her role, I have concluded that the Applicant’s dismissal was harsh, unjust, or unreasonable. Accordingly, I am obliged to consider the remedy which is appropriate in all the circumstances.

7 Remedy

7.1 Reinstatement

[34] The Applicant did not press for reinstatement, submitting that it was not an option due to a significant loss of trust and confidence.

[35] The legislative scheme in Part 3-2 of the Act empowers the Commission to order the remedies of reinstatement or compensation once a dismissal has been found to be unfair. Section 390(3) provides that the Commission must not order the payment of compensation unless it is satisfied that reinstatement of the person is not appropriate, and an order for the payment of compensation is appropriate in all the circumstances of the case.

[36] Section 391(1) addresses the type of reinstatement orders available to the Commission. Section 391(2)-(4) empowers the Commission to make orders ancillary to reinstatement orders made under s 391(1). Section 391(2) authorises the making of orders to maintain the continuity of a person’s employment and the period of their continuous service, and ss 391(3) and (4) authorise the making of orders to restore lost pay. Section 392 deals with the power to make an order for compensation in circumstances where the Commission is satisfied, pursuant to s 390(3)(a), that reinstatement is inappropriate.

[37] It is accepted that reinstatement is the ‘presumptive’ remedy, 8 albeit it should not be read that there is a right to reinstatement consequent upon a finding that a person has been unfairly dismissed.9 Described as the primary remedy, the term simply recognises that reinstatement is the first, perhaps even the foremost, remedy under the Act.10

[38] The principles applicable to the proper interpretation and application of ss 390 and 391 were summarised in the Full Bench decision of Nguyen and Le v Vietnamese Community in Australia (Nguyen) 11. Those principles are adopted for the purpose of this decision. However, it is further observed that in Seitz v Ironbay Pty Ltd T/A City Beach (Seitz),12 at paragraph [15], the Full Bench again summarised the principles applicable to the proper interpretation and application of ss 390 and 391, as had been detailed in Nguyen. However, Seitz has significance in this case because the applicant, a Mr Seitz, appealed against the order of his reinstatement, noting he had not sought it and, in any event, had obtained alternative employment.

[39] In Seitz, the following observations were drawn from decided cases about the impact a loss of trust and confidence may have on whether reinstatement is appropriate:

a) 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.

b) 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.

c) 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.

d) 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.

e) 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. 13

[40] As observed, Seitz proves apposite in this setting, because the Full Bench considered an argument against reinstatement by a former employee rather than employer. Concerning an applicant’s argument premised on a loss of trust and confidence, the Full Bench stated:

When the issue of an asserted loss of trust and confidence is considered in the context of the appropriateness of reinstatement, it is important to note that this does not concern the broadly-formulated implied mutual duty of trust and confidence that was rejected by the High Court in Commonwealth Bank of Australia v Barker, nor the narrower and long-established employee’s duty of trust and confidence, but rather to “that which is essential to make an employment relationship workable.” Kiefel J (as her Honour then was) characterised the employee’s duty of trust and confidence as reflecting “... an essential aspect of the relationship between employer and employee. Whilst trust and confidence is maintained, the relationship endures”. It is this essential element of a viable working relationship which arises for consideration in the context of s 390. As a practical matter relevant to whether reinstatement is the appropriate remedy we consider that, while a loss of trust and confidence is usually asserted by the employer, it could equally be relied upon by an unfairly dismissed employee as a reason why reinstatement would not be appropriate and an award of compensation in lieu should be determined. Particularly in a small workplace where viable personal relationships between employees and the employer (or the employer’s personal emanation) are critical, it seems to us that a rationally-based and well-founded loss of trust and confidence in the employer on the part of an unfairly dismissed employee may well constitute a significant practical impediment to the re-establishment of a viable employment relationship. 14 (citations omitted)

[41] The Applicant expressed that she did not want to be reinstated and cited several reasons in support of her submission.

[42] The first reason was that the Respondent had taken punitive action against the Applicant for no apparent lawful reason. The Applicant referred to having been denied the payment of her Bonus Leave. However, the direct evidence relied upon by the Applicant – notably the correspondence of the Respondent dated 21 February 2022, appeared to provide plausible explanation as to why the benefit had not been provided. Furthermore, no evidence was adduced to suggest that the Respondent had wrongly misrepresented that Bonus Leave was not payable on termination of employment.

[43] While some four business days passed between the Applicant having enquired about the Bonus Leave and the Respondent’s response to the same, such information was not critical to the extent that the Applicant was unable to make an unfair dismissal application without it. To suggest that the delay had a punitive effect because of its impact on the statutory timeframe for making an unfair dismissal application, simply cannot be sustained on the Applicant’s own evidence.

[44] The second reason was that the Respondent had discriminated against the Applicant on the basis that the Applicant was repeatedly advised that unvaccinated employees would be prevented from entering the workplace. In short, the communications filed do not evince that the Respondent engaged in unlawful discrimination – whether indirect or direct, but instead show that the Respondent considered itself obliged to comply with the State Government’s mandatory COVID-19 ‘vaccination policy’. 15

[45] The third, was that the Respondent had bullied the Applicant, and lastly that the Applicant’s health and safety concerns had been ignored as had her working rights. There was no evidence before me to suggest that the Applicant had been bullied and therefore I consider the proposition absent merit. However, the latter point regarding the Applicant’s health and safety concerns, is deserving of further attention.

[46] Turning to that latter point, the Applicant appears to have sought the production of numerous documents from the Respondent, by letter of 3 December 2021. One may assume that the letter and request for documents embody the health and safety concerns held by the Applicant. The documents sought, included amongst others, the written law that required the Applicant to undergo a ‘forced vaccination as a prerequisite of her employment’. In the circumstances, I consider that this request, insofar as it referred to the Directions, was a reasonable request to have made, particularly given the Respondent had relied upon the Directions to terminate the Applicant’s employment.

[47] From the evidence provided it is apparent that by letter of 13 December 2021, the Respondent had referred to the ‘State Government’s mandatory COVID-19 vaccination policy’ and had provided a hyperlink to a website which was said, by the Respondent, to detail information about the State Government’s ‘policy’, including the direction issued under the Public Health Act 2016 (WA). However, from the materials filed it is not evident that the Respondent provided the Applicant with the Directions or at least with access to the specific Directions relevant to her circumstances.

[48] Correspondence that the Applicant received from the Respondent dated 18 January 2021 also appears to designate the Applicant has falling within ‘Group 2’ and notes:

On 2 December 2021, Paul Hyham communicated to you that all LAP employees in “Group 2” would be required to comply with the State Government’s mandatory COVID-19 vaccination policy. Accordingly, this means that LAP employees are required to have their first does of the COVID-19 vaccination by 31 December 2021 and are required to be fully vaccinated by 31 January 2022, unless exempt.

However, there is no evidence before me to suggest that the Applicant was informed why she fell within the ‘Group 2’ cohort, or on what basis the Respondent considered the ‘State Government’s ‘policy’ applied to the Applicant in her employment.

[49] Evidently, 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. 16

[50] In the circumstances before me, I am unpersuaded for the most part by the Applicant’s submissions as to why reinstatement is inappropriate. There simply is no merit in her claims that the Respondent took punitive action against her, or that the Respondent bullied her or unlawfully discriminated against her. Further, in respect to her health and safety concerns having been ignored, it must be said that in respect of the documents sought by the Applicant in her correspondence of 3 December 2021 that broached the provision of written data proving the vaccine had undergone clinical trials, the Respondent was under no obligation to provide such documents – and would, in my view, have been incapable of doing so.

[51] However, this is a case where there has been more than a ‘ripple on the surface of the employment relationship’ which has ‘destroyed its viability’. The Respondent has conceded that it did not have a valid reason for the Applicant’s dismissal. In my view, it is reasonable for an employee to trust that when an employer decides to dismiss her or him on the basis of non-compliance with a new regulatory requirement, 17 the Respondent would have undertaken the requisite due diligence to ensure it had correctly interpreted the application of the directive or regulatory requirement in respect of its employee, prior to dismissing that same employee.

[52] The Respondent’s communications to the Applicant in respect of the Directions were vague to the extent that they did not name the particular Directions, referred to a governmental ‘policy’, did not explain why it was the Applicant fell within the Group 2 cohort, and provided the Applicant with a hyperlink to a government website in the absence of detailing the relevant Directions to seek out.

[53] The onus of establishing a loss of trust and confidence rests on the party making the assertion – in this case the Applicant. While I consider that the Applicant’s submissions on reinstatement did not advance her case, it is nevertheless understandable why the Respondent’s action in dismissing the Applicant in such circumstances has resulted in the Applicant not seeking reinstatement. An employee might assume that an employer was correctly applying a new regulatory requirement before it decided to remove a primary source of purpose and income from her or him. Where that has not occurred, it is conceivable that the trust of that same employee would irreversibly dissipate.

[54] Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate. However, in Seitz it was acknowledged that 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. 18 The Applicant is adamant that she does not want to be reinstated, notwithstanding being currently unemployed. In my view, this factor bears considering. Returning the Applicant to an employment relationship absent her agreement appears contrary to according a ‘fair go all round’, and whilst not wishing to descend into punditry, it would appear highly unlikely that a positive and productive relationship would ensue. In light of the aforementioned reasons and the Applicant’s submission that it is not a remedy she seeks; I consider it inappropriate to order reinstatement.

[55] As I have formally rejected reinstatement as an appropriate remedy, it is necessary to deal with the remedy of compensation.

7.2 Compensation

[56] Compensation is provided to an applicant who has been unfairly dismissed for reparation for losses reasonably attributable to the unfair dismissal. It is not intended to be punitive. 19 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.20 The Applicant seeks the maximum amount of compensation available notwithstanding that she has taken no steps to mitigate her loss – a point that will be traversed shortly.

[57] In assessing compensation, it is necessary to take into account all the circumstances of the case, including the specific matters identified in s 392(2)(a) to (g), and to consider the other relevant requirements of s 392.

[58] The well-established approach to the assessment of compensation under s 392 is to apply the ‘Sprigg Formula’, derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. 21 This approach was articulated in the context of the current legislative framework in Bowden v Ottrey Homes Cobram and District Retirement Villages (Bowden),22 and I have applied this methodology in reaching my decision.

[59] Under that approach, the first step to be taken in assessing compensation is to consider s 392(2)(c), that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed (the anticipated period of employment). In Bowden this was described in the following way:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary

element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...” 23

[60] Once the first step of determining the anticipated period of employment has been undertaken, various adjustments are made in accordance with s 392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.

7.3 Remuneration that the Applicant would have been received: s 392(2)(c)

[61] It was undisputed that at the time of her dismissal, the Applicant’s rate of pay was $31.8694 per hour (gross) based on a 38-hour week. This amounted to a gross weekly income of $1211.04.

[62] The Applicant submitted that she had excellent standing in her role as a loyal employee and was likely to have had a long and successful career with it. The Applicant added that her dismissal abruptly ended this possibility, and this fact should be considered alongside her stated losses.

[63] There is no evidence before me to suggest that the Applicant had previously engaged in misconduct or had succumbed to periods of underperformance or unjustified absenteeism. It was not the case that the Applicant’s employment was in considerable difficulty immediately prior to her dismissal. The relationship between herself and the Respondent had not broken down to a substantial degree prior to the Respondent informing the Applicant of the requirement that she provide evidence of having been vaccinated against COVID-19.

[64] In short, but for the Applicant’s dismissal, I am satisfied that the Applicant would have proceeded to work for the Respondent for at least a further year. There is no evidence that the Applicant had any plan to resign her employment or seek other employment. The Applicant gave evidence of having forged friendships within the workplace and for all intents it appeared that prior to the introduction by the Respondent of the requirement to show evidence of vaccination, the Applicant was content.

[65] Therefore, had the Applicant not been dismissed, she would have earned $62,973.93 (gross).

7.4 Remuneration earned s 392(2)(e) and income reasonably likely to be earned s 392(2)(f)

[66] There was no evidence that after her dismissal the Applicant earned any other remuneration. Further, there is no evidence before me to suggest that the Applicant was likely to have earned any income during the period between the making of the order for compensation and the actual payment of that compensation. Therefore, there will be no adjustment on this score.

7.5 Length of service s 392(2)(b)

[67] I do not consider that the Applicant’s length of service calls for any upward or downward adjustment to the compensation amount that should otherwise be ordered.

7.6 Other matters s 392(2)(g)

[68] As was said in the Full Bench decision in McCulloch v Calvary Health Care Adelaide (McCulloch), 24 it is important to appreciate that a deduction for contingencies is applied to prospective losses, that is loss occasioned after the date of the hearing. Referring to Ellawala v Australian Postal Corporation, the Full Bench in McCulloch stated that a discount for contingencies is a means of taking account of the various probabilities that might otherwise affect earning capacity. Of course, at the time of hearing any such impact on an applicant’s earning capacity between the date of termination and the hearing will be known. It will not be a matter of assessing prospective probabilities but of making a finding on the basis of whether an applicant’s earning capacity has in fact been affected during the relevant period.25 This contrasts to the exercise before me now.

[69] It is close to six months since the Applicant’s employment was terminated and there is no direct evidence that she was ill during this period or would have been otherwise unable to work. I have therefore found that she would only have been employed for a further six months. It follows, that any contingency calculation would only have relevance for the six months (namely, between the date of my decision and the end of the anticipated period of employment). As observed, a contingency discount necessarily only applies to future circumstances and in the context of the present matter I am not persuaded to make any discount for contingencies.

[70] The remuneration that the Applicant would have received or was likely to have received would include payment for the period worked on notice, or the payment received in lieu of notice. The letter of termination refers to payment in lieu of notice having been provided. I am satisfied that this period is open to be characterised as a notice period.

[71] Notice is payable at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum notice period. Payment in lieu of notice was provided and will be deducted from the anticipated period of employment.

[72] In relation to taxation, compensation will be determined as a gross amount, and it will be left to the Respondent to deduct any amount of taxation required by law.

7.7 Viability s 392(2)(a)

[73] It is not contended that an order for the payment of compensation would affect the viability of the Respondent’s business and I find that the order I propose to make will not affect the viability of the Respondent’s business. Therefore, there will be no deduction form the compensation amount on this basis.

7.8 Mitigation efforts s 392(2)(d)

[74] 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. 26 The reasonableness of the efforts taken to mitigate loss depends on the circumstances of the case.27

[75] In this case, the Applicant has taken no steps to mitigate her loss, conceding that very point. However, she qualifies her position noting that dealing with this unfair dismissal application has been all-encompassing for her. The Applicant points to constraints that have been debilitating for her on every level of her existence. These constraints have included an inability to pay rent and living expenses, family issues, loss of friendships, enforced sale of early assets and investments ahead of desired maturity, mental health issues and future income loss and security.

[76] The Applicant speaks of the hardships she has endured since the loss of her job with the Respondent. However, she brings forward no direct evidence to show the enforced early sale of assets or of mental health issues of a serious nature. Some six months have passed since her dismissal and yet the evidence suggests that she has taken no steps to mitigate her loss. None. Whilst appreciative of the difficulties faced by the Applicant on the loss of her job, the reasons provided for her failure to mitigate her loss are unpersuasive. It cannot even be said that the Applicant’s efforts to mitigate her loss were ‘modest’ – as there was no effort expended and it does not appear that Applicant’s age, education, geographical location, or employment experience potentially had any bearing on such efforts.

[77] The Applicant shares that her expectation is that the Commission will provide her with 26 weeks’ pay, plus additional remedy and suitable restitution for all losses and damages occasioned by the Respondent’s actions. The Applicant’s expectation is misplaced given the limitations placed upon the available remedies in this jurisdiction. In all the circumstances, I am satisfied that the Applicant’s abject failure to mitigate her loss warrants a deduction to the amount of compensation to be awarded, in the amount equivalent to 50%.

7.9 Misconduct s 392(3)

[78] I am satisfied that the Applicant did not commit any misconduct contributing to her dismissal that requires a deduction under s 392(3).

7.10 Compensation cap s 392(5)

[79] The amount of compensation the Commission may order is capped. If the appropriate quantum of compensation initially assessed exceeds that cap, then the Commission must reduce the amount to the amount of the cap. The Act stipulates that the compensation cap is the lesser of:

a) the amount of remuneration received by the person, or that he or she was entitled to receive (whichever is higher) in the 26 weeks before dismissal; and

b) half the amount of the high income threshold immediately before dismissal. 28

[80] For the purpose of s 392(5) of the Act, I am satisfied the amount is $62,973.93

7.11 Instalments s 393

[81] I do not consider that there is any reason for compensation to be made by way of instalments.

8 Conclusion

[82] The amount of compensation which is derived from the above considerations is $33,297.47, less deduction of any tax as required by law. I consider that is an appropriate amount of compensation in all the circumstances.

[83] The calculation for compensation is set out in the following table.

[84] In determining the amount for the purpose of the Order, 29 I have taken into account all of the circumstances of the case including the criteria set out in s 392(2) of the Act.

DEPUTY PRESIDENT

Matter Determined on the Papers

Final written submissions:

1 July 2022

Printed by authority of the Commonwealth Government Printer

<PR743776>

 1   Fair Work Act 2009 (Cth) s 394 (the Act).

 2   Respondent’s Outline of Submissions [5(c)].

 3   Ibid [5(d)].

 4   Critical Business Worker Restrictions on Access Directions (WA); Resources Industry Worker (Restrictions on Access) Directions (No 2) (WA).

 5   MA000084.

6 (1995) 185 CLR 410, 465.

7 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 8   Hatwell v Esso Australia Pty Ltd [2019] FWC 931, [28].

 9   Nguyen and Le v Vietnamese Community in Australia [2014] FWCFB 7198.

 10   Ibid.

 11   Ibid.

 12   (2018) 274 IR 303 (Seitz).

 13   Ibid [15].

 14   Ibid [16].

 15   Letter from the Respondent to the Applicant dated 18 January 2022.

 16   Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186, 191.

 17   Roman v Mercy Hospitals Victoria [2022] FWC 711, [31]; Mr Anthony Girod v Swan Transit [2022] FWC 1489, [40].

 18   Seitz (n 12) [15].

 19   Kable v Matilda Greenbank [2015] FWCFB 3512, [17].

 20   The Act (n 1) s 392(4).

 21   (1998) 88 IR 21.

 22   (2013) 229 IR 6.

 23   Ibid 18-19.

 24   [2015] FWCFB 2267 (McCulloch).

 25   Ellawala v Australian Postal Corporation Print S5109, [43], cited in ibid, [21].

 26   Rohan Veal v Sundance Marine Pty Ltd as trustee for Sundance Unit Trust T/A Sundance Marine [2013] FWCFB 5205.

 27   Biviano v Suji Kim Collection PR915963 at [34]; McCulloch (n 24).

 28   The Act (n 1) ss 392(5), (6).

 29   PR743777.