Fair Work Act 2009
s.394—Unfair dismissal

Nicholas Bailey
v
Octeros Manufacturing Pty Ltd
(U2022/4110)

Application for an unfair dismissal remedy – dismissed for purported misconduct in taking ‘kick-backs’ – Respondent failed to participate in proceedings – finding that dismissal was unfair – compensation ordered

[1] On 7 April 2022, Mr Nicholas Bailey made an application to the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging he had been dismissed from Octeros Manufacturing Pty Ltd (the Respondent) and that his dismissal was harsh, unjust or unreasonable.

[2] In his Form F2 – Unfair Dismissal Application, Mr Bailey declared that he commenced employment with the Respondent on 12 February 2020 and was summarily dismissed from his employment on 28 March 2022. He noted that the reasons for the dismissal were not outlined in writing to him but received an Employee Separation Certificate stating that the reason for dismissal is “misconduct”. Mr Bailey contended this is unsubstantiated and incorrect.

[3] The Respondent failed to file a Form F3 – Employer’s Response. A Commission staff member contacted Mr Scott Dwan, Director on 10 May 2022. The file note records Mr Dwan insisting that he does not need to complete a Form F3.

[4] Upon the matter being allocated to me I listed the matter for a telephone conference. The only response I have received from the Respondent in these entire proceedings is Mr Dwan’s email of 26 May 2022 stating, “Unable to make this date as is the show holiday for the area”.

[5] On account of the Respondent’s failure to complete a Form F3 and file material in accordance with directions issued by me, on 1 July 2022, the Respondent was informed of the following:

“The Commissioner advises that the hearing of this matter will proceed at 10:00am (AEST) Wednesday, 20 July 2022 by Microsoft Teams.  If the Respondent does not participate in the hearing the matter will be heard in the Respondent’s absence.”  

[6] The matter was heard before me by video using Microsoft Teams on 20 July 2022. The Respondent did not attend the hearing, nor file any material at all despite numerous directions to do so. On 20 July 2022, my Associate made several attempts to contact the Respondent, without success. The hearing proceeded with Mr Bailey in attendance.

Relevant legislation

[7] Section 394 of the Act sets out:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[8] Further, s.387 provides:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Evidence of Mr Bailey

[9] Mr Bailey commenced employment on 12 February 2020 as a Project Manager. He was interviewed by Mr Sebastian Latcham, Contractors Manager, and Mr Raymond Ross, General Manager. Mr Bailey recalled that during the interview process there was particular interest shown in his experience in procurement of joinery from China, however this was not a condition of his employment nor a function of his role.

[10] Mr Bailey’s evidence is that he was approached by Mr Latcham regarding potential losses on a particular project. Mr Latcham asked him to facilitate a quotation for metal works for this project via one of Mr Bailey’s suppliers in China. The savings were in the vicinity of $300,000 with Mr Latcham and Mr Ross approving the purchase. Mr Bailey said he made it clear at this time that he would receive a commission from the supplier. Due to COVID-19 and Australia’s relationship with China, the procurement did not proceed at that time.

[11] In May 2021, Mr Latcham established that there was an imminent and significant loss anticipated for another project. Mr Bailey offered to assist in managing the process of procurement of the joinery from China. The project was subsequently delayed due to COVID-19 construction site issues.

[12] On or about 30 July 2021, Mr Bailey approached Mr Latcham to enquire if they were going to proceed with the project and procurement of product. Mr Latcham informed Mr Bailey that he had resigned, and Mr Bailey would need to speak with Mr Dwan regarding the issue.

[13] Mr Bailey’s evidence is that on or about the same day, after a project manager meeting, he approached Mr Dwan and presented him with figures of local expected costs versus costs from purchasing the material from China. During the brief meeting which lasted no more than three minutes, Mr Dwan was distracted on his phone, texting and paying little attention. Mr Bailey presented the figures and told him that he would receive a small commission direct from the supplier. Mr Dwan made no comment or enquiry regarding the value and was only interested in the $200,000 saving Mr Bailey was facilitating.

[14] After the meeting, Mr Bailey met with Mr Michael Healey, Project Manager, and informed him that Mr Dwan had approved the procurement to proceed. Mr Bailey proceeded with the procurement which was successfully delivered and accepted by the Respondent’s client in December 2021.

[15] It is Mr Bailey’s contention that it was common knowledge throughout the Respondent that he was facilitating procurement from China and receiving commission for the same. Mr Bailey’s evidence is that he regularly talked about wanting to pursue this as a full-time career in the future.

[16] Mr Bailey further noted that during his time with the Respondent, he had performed external local manufacturing work in his own time. This work had been approved and invoiced through his company “Bailey Investment Trust”. Mr Bailey contended that this clearly demonstrates that the Respondent was aware of the existence of the “Bailey Investment Trust” and had no objection to him performing work outside of his regular employment and receiving remuneration for the same. Mr Bailey noted that there is no stipulation within his contract restricting him from running a business.

[17] On 22 March 2022, Mr Bailey attended work and in the afternoon was instructed to take leave for two weeks. Mr Bailey contacted either the Commission or the Fair Work Ombudsman on 23 March 2022 to obtain advice. After receiving advice, Mr Bailey sent the following email to Mr Dwan on 25 March 2022:

“Scott

Further to the e-mail sent to yourself on the 22^nd March 2022 and the forced leave please note that I do not accept your instruction to take leave for the following reasons.

1. Under advice, there is no situation relevant to my current employment which allows an employer to force an employee to take leave. There-fore there should be no deduction from my leave entitlement. If payroll are instructed to deduct leave entitlement they would be knowingly breaching the terms of my employment contract, and the act.

2. You instructed me to take the leave stating, “there is nothing for you to do all your projects are nearly done and that you would take care of them”. This is also not a legitimate reason to force an employee to take leave.

3. As of today, and since Wednesday the 24 March 2022 I have been, and am willing to work. Please confirm if you would like me to attend work on Monday 28^th March, by C.O.B today.

Please also note that access to my company e-mails and office 365 seems to have been disconnected and I am not aware of the reason. If this is a technical issue rather than a deliberate decision please let me know so I can investigate with IT support. I also noticed yesterday that my fuel card did not work, possibly you could check to see if there is an issue with the card as fuel is part of my employment contract.

Kind Regards
Nicholas Bailey”

[18] Mr Bailey said he received an immediate reply from Mr Dwan stating, “See you Monday.”

[19] On 26 March 2022, Mr Bailey received a We-Chat message from the Chinese supplier telling him that he had sent the bank remittances for his commission as he had asked. Mr Bailey knew that he had not asked this of the Chinese supplier. Accordingly, he requested the supplier to forward the email chain to his private email.

[20] The email chain showed that an email had been sent from Mr Bailey’s work email to the Chinese supplier asking for copies of his commission remittances. Mr Bailey contends that Mr Dwan impersonated him to the Chinese supplier, as Mr Bailey did not have access to his work email and did not send the email. The email is as follows:

“Hi Bruce,

Could you please email me back the remittances for the commissions invoiced by my Bailey Investment Trust for the Octeros Cabinet Orders to date?

Required asap please.

Kind regards,
Nick Bailey | Snr Projects Manager

QBCC Licence Number [redacted]”

[21] On 28 March 2022, Mr Bailey attended for work and met with Mr Dwan. It is his evidence that the following occurred:

•  Mr Dwan was extremely agitated and abusive;

•  Mr Dwan accused Mr Bailey of taking kick-backs;

•  Mr Bailey reminded Mr Dwan of the meeting held between them and how he had informed Mr Dwan of the commission he would receive;

•  Mr Dwan appeared unsure at this point but maintained his position;

•  Mr Bailey asked Mr Dwan to put the allegation to him in writing, to which Mr Dwan replied, “I don’t have to put anything in writing”; and

•  Mr Dwan told Mr Bailey to get out and accordingly, Mr Bailey left.

[22] Mr Bailey received a completed separation certificate dated 1 April 2022. It nominates 22 March 2022 as the date of the termination, citing “misconduct as an employee’ for the reason for the termination. The separation certificate is from Octeros Cabinets Pty Ltd, however I note that Mr Bailey’s payslip for March 2022 is from Octeros Manufacturing Pty Ltd, the Respondent. It appears he was paid until 22 March 2022.

Efforts to mitigate loss

[23] Mr Bailey commenced employment with a new employer on 11 May 2022, approximately seven weeks following his dismissal from the Respondent. He earns a salary of $140,000 in this role.

Mr Bailey’s submissions

[24] Mr Bailey contended that the dismissal is harsh, unjust and unreasonable because:

•  there was no valid reason for the dismissal;

•  there was no written or verbal warning;

•  there was no procedural fairness in that there was no opportunity to respond to the allegations;

•  he was not offered a support person at any meeting;

•  the dismissal occurred without any investigation in relation to the allegations, which are false, in any event; and

•  there was no opportunity for him to defend the allegations, which are serious allegations.

[25] Mr Bailey contended that it was clear that the dismissal was deliberate and pre-meditated. He relies on having been unlawfully instructed to take leave on 22 March 2022 and being removed from the email and online systems on 24 March 2022 as evidence of this.

[26] Further, Mr Bailey is aggrieved that he considers that Mr Dwan impersonated him to acquire his personal banking information.

Evidence of Mr Michael Haley

[27] Mr Michael Haley declared that he has known Mr Bailey for approximately four years and worked with him for approximately 18 months with the Respondent. Mr Haley stated that he has found Mr Bailey to be an honest and consciousness co-worker.

[28] Mr Haley confirmed that Mr Bailey had a number of contacts in China prior to being employed by the Respondent and he was aware he received commissions from the Chinese suppliers.

[29] Mr Haley further confirmed that to the best of his knowledge, Mr Bailey had not only been employed as a Project Manager, but also employed specifically to assist the Respondent in the process of sourcing joinery and managing the end-to-end delivery of the same in an effort to increase project profit margins.

[30] Mr Haley stated that to the best of his knowledge, management was completely aware that Mr Bailey received commissions direct from the suppliers in China. He confirmed that the Respondent had no contacts in China nor the experience to manage the procurement and delivery of joinery from offshore suppliers.

[31] Mr Haley noted that during his time with the Respondent, Mr Bailey freely talked about his suppliers in China, and it was common knowledge amongst many staff members and management that he would facilitate the procurement from China and receive commissions. He often made reference to assisting companies in this process as a full-time career.

No evidence from the Respondent

[32] The Respondent did not file any evidence in these proceedings, not even a Form F3. There is no basis for me to conclude that the Respondent is a small business.

[33] Mr Bailey’s payslip for the relevant period prior to his dismissal demonstrates an hourly rate equivalent to a salary of $140,000. Even with the payment of a fuel allowance, I am satisfied his income is under the high-income threshold. Mr Bailey has met the minimum employment period. There are no jurisdictional barriers to determining if the dismissal is harsh, unjust or unreasonable.

Consideration

[34] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reason of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd: 1

“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.”

[35] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter. 2

s.387(a) – whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[36] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.”

[37] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 3

[38] The only information I have before me is that the dismissal appears to have occurred because Mr Dwan considered that Mr Bailey was receiving ‘kick-backs’ against the wishes of the Respondent. I accept Mr Bailey’s evidence as to what was said to him by Mr Dwan on 28 March 2022.

[39] There is no sound reason to conclude that Mr Bailey was in receipt of ‘kick-backs’. I accept his evidence that he informed Mr Dwan that he could procure product from China at a substantially cheaper rate than locally sourced product and that Mr Bailey informed Mr Dwan that he would receive a payment of commission. I find that this discussion occurred as Mr Bailey has recounted it, and he was given authority to place the order.

[40] Mr Bailey had sent Mr Dwan correspondence on 25 March 2022 disputing the Respondent’s direction for him to take leave at short notice. Mr Dwan simply responded, “See you Monday”. The dismissal took effect on 28 March 2022, however it seems that Mr Bailey had not been paid since 22 March 2022.

[41] Mr Dwan has chosen not to give evidence before the Commission to refute any of Mr Bailey’s evidence. I accept Mr Bailey’s evidence as truthful.

[42] I find that there was not a valid reason for the dismissal

s.387(b) – Whether the person was notified of that reason

[43] Mr Bailey has had to conclude, based on the discussion held on 28 March 2022, that the reason for the dismissal is because Mr Dwan considered that he had taken ‘kick-backs’. Mr Dwan did not provide Mr Bailey with any written correspondence.

s.387(c) – Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[44] At the meeting of 28 March 2022, Mr Bailey reminded Mr Dwan of his declaration of commission for procuring the product from China. Based on Mr Bailey’s evidence, it appears that Mr Dwan considered what Mr Bailey had to say but forged ahead with the dismissal.

s.387(d) – Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal

[45] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[46] There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] states the following:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”

[47] Mr Bailey did not ask for a support person to be in attendance and accordingly there was no refusal by Mr Dwan.

s.387(e) – Was there a warning of unsatisfactory work performance before dismissal

[48] There is no evidence of any warnings having been issued to Mr Bailey.

s.387(f) – Whether the respondent’s size impacted on the procedures followed and s.387(g) – whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[49] There is no evidence before the Commission on this issue, nor is there information relevant to the size of the Respondent. I expect that the Respondent would not have a dedicated human resource management specialist, especially so given Mr Dwan’s conduct in the manner in which he effected the dismissal.

s.387(h) – Other matters

[50] There does not appear to be any other matters necessary to take into consideration.

Conclusion

[51] I have determined that there was not a valid reason for the dismissal.

[52] I consider that Mr Bailey has had to piece together the reason for the dismissal.

[53] I have determined that Mr Bailey was given some opportunity to respond to the accusation he was taking ‘kick-backs’.

[54] There was no unreasonable refusal by the Respondent to allow Mr Bailey a support person.

[55] Mr Bailey was not issued any warnings of unsatisfactory work performance before the dismissal.

[56] The size of the Respondent is unknown and I am assume there was an absence of a dedicated human resource specialist which did impact on the procedures followed.

[57] I determine that Mr Bailey’s dismissal harsh, unjust and unreasonable.

Remedy

[58] Section 390 of the Act reads as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[59] Mr Bailey is a person protected from unfair dismissal for the Act’s purposes and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether he can be reinstated.

[60] Mr Bailey has found other suitable employment and has no desire to be reinstated. I am satisfied it is inappropriate to order reinstatement.

Compensation

[61] Section 392 of the Act provides:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

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

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

Authorities

[62] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket. 4 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;5 Jetstar Airways Pty Ltd v Neeteson-Lemkes6 and McCulloch v Calvary Health Care (McCulloch).7

[63] I have had regard to the above authorities. I have evidence before from Mr Bailey, but none from the Respondent.

The effect of the order on the viability of the Respondent

[64] There is no evidence before the Commission of the effect that any order of compensation would have on the viability of the Respondent.

The length of Mr Bailey’s service

[65] Mr Bailey was employed for a period of just in excess of two years. This is not a long period of time.

The remuneration that Mr Bailey would have received, or would have been likely to receive, if he had not been dismissed

[66] Without the benefit of evidence from the Respondent, I consider that Mr Bailey would have continued in the role for a period of nine months. Mr Bailey is aged 58. His evidence is that he would have stayed in the role until he retired at age 65, however I consider he would likely have chosen to work for an alternative employer in 2023, one who more closely aligned to his high ethical standards.

[67] I consider that Mr Bailey would have received remuneration of nine months at the annual rate of $140,000 which is equal to $105,000.

The efforts of Mr Bailey (if any) to mitigate the loss suffered because of the dismissal

[68] Mr Bailey made every effort to mitigate his loss and secured suitable alternative employment approximately seven weeks later.

The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[69] Mr Bailey commenced in his new role on 11 May 2022. The period between 11 May 2022 and today’s date is 20 weeks and 2 days. At a rate of $140,000 per annum, that is a sum of $54,923.08. It is necessary to deduct this amount from the $105,000 determined by me at [67] to be paid to Mr Bailey.

The amount of any income reasonably likely to be so earned by Mr Bailey during the period between the making of the order for compensation and the actual compensation

[70] Mr Bailey is reasonably likely to earn a further two weeks’ pay in his new employment during the period between the making of order for compensation and the actual compensation. This is an amount of $5,384.62. It is necessary to deduct this amount from the $105,000 determined by me at [67] to be paid to Mr Bailey.

Other relevant matters

[71] I do not consider there are other relevant matters affecting the amount of compensation to be awarded.

Misconduct reduces amount

[72] Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[73] The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced. 8

[74] I am not satisfied that Mr Bailey engaged in any misconduct. Accordingly, I cannot be satisfied a reduction should be made.

Shock, distress etc. disregarded

[75] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mr Bailey by the manner of the dismissal.

Compensation Cap

[76] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[77] The high income threshold immediately prior to the dismissal was $158,500, and the amount for 26 weeks was $79,250. The amount of compensation the Commission will order does not exceed the compensation cap nor the amount that Mr Bailey was entitled to during the 26 weeks immediately before the dismissal.

Payment by instalments

[78] There is no evidence before the Commission to satisfy me that it is appropriate to order the payment by instalments.

Order of compensation

[79] I have determined that the Respondent is to pay to Mr Bailey nine months’ compensation at the rate of $140,000 per annum, being an amount of $105,000. From this amount there will be a deduction of $54,923.08 and $5,384.62 in respect of remuneration earned by him and to be earned by him in the two weeks between the making of an order of compensation and when it is to be paid to him.

[80] The amount to be paid to Mr Bailey is $44,692.30 gross, less tax as required by law.

[81] In addition, the Respondent is to pay superannuation at the rate of 10% (as the Superannuation Guarantee Rate was at the time of the dismissal), being an amount of $4,469.23 into Mr Bailey’s superannuation fund.

[82] The above amounts are to be paid within 14 days of the date of this decision.

[83] An Order of compensation [PR746350] will be issued concurrently with this decision.

COMMISSIONER

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 1   (1995) 185 CLR 410, [465].

 2   Sayer v Melsteel [2011] FWAFB 7498 at [20].

 3   Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

 4   (1998) 88 IR 21.

 5   [2013] FWCFB 431.

 6   [2014] FWCFB 8683.

 7   [2015] FWCFB 2267.

 8   Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].