Fair Work Act 2009
s.394—Unfair dismissal

Elizabeth McCallum
v
Everstone Pty Ltd
(U2021/6660)

Variation to decision [2022] FWC 782 in matter U2021/6660 – power under s.603 – initial decision based on incomplete or false information in respect of remedy – decision varied – Order PR740125 revoked.

[1] On 8 April 2022, I issued a decision [[2022] FWC 782] (Decision) in matter number U2021/6660 finding that Ms Elizabeth McCallum (Applicant) was protected from unfair dismissal, that her dismissal was unfair and that an order for compensation equating to $7,484.17, less taxation to be deducted as required by law, was appropriate having regard to all the circumstances of the case. An order requiring the payment of this amount within 14 days was issued with the Decision (Order). 1

[2] The calculation of compensation is set out in paragraphs [118] to [148] of the Decision. Public health orders in response to the COVID-19 pandemic, which were in place impacting particular local government areas in New South Wales and varied from time to time following the Applicant’s dismissal, have given rise to considerable complexity in the calculation of compensation. This is particularly so in relation to the assessment of remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed. The parties did not squarely address the impact of public health orders on the calculation of compensation during the initial hearing of the matter.

[3] On 13 April 2022, Ms Fiona Zou for Everstone Pty Ltd (Respondent) sent email correspondence to my Chambers raising a number of issues in relation to the calculation of compensation in the Decision.

Further hearing

[4] As a result of the issues raised by the Respondent, I issued an interim set aside order (Interim Order) 2 in relation to the Order and convened a hearing on 21 April 2022 to hear from the parties about the issues raised by the Respondent, indicating that I was considering varying the decision pursuant to s.603 of the Fair Work Act 2009 (Cth) (Act) in relation to the calculation of compensation.

Issues raised by the Respondent

Estimated remuneration between 8 July 2021 and 15 August 2021

[5] At paragraph [131] of the Decision, I found that the remuneration likely to have been received by the Applicant between 8 July 2021 and 15 August 2021 was $5,775.00 (based on 5 weeks) plus $231.00 (based on 1 working day), amounting to $6,606.60 inclusive of 10% superannuation.

[6] In its email of 13 April 2022, the Respondent submitted that the Applicant, had she not been dismissed, would have only worked 7 days between 8 July 2021 and 15 August 2021.

[7] Based on this, I understand the Respondent’s submission to mean that the Applicant would only have earned $1,617.00 (based on 7 working days), amounting to $1,778.70 inclusive of 10% superannuation, between 8 July 2021 and 15 August 2021 but for her dismissal.

[8] In support of this submission, the Respondent directed me to a copy of a document setting out the working hours for the person who replaced the Applicant after her dismissal, which was filed with its Outline of Argument on 15 December 2021 as Attachment E08.

Estimated remuneration between 11 September 2021 and 16 September 2021

[9] At paragraph [131] of the Decision, I found that the remuneration likely to have been received by the Applicant between 11 September 2021 and 16 September 2021 was $1,155.00 (based on 5 working days), amounting to $1,270.50 inclusive of 10% superannuation.

[10] In its email of 13 April 2022, the Respondent submitted that the Applicant, had she not been dismissed, would have only worked 1 day between 11 September 2021 and 16 September 2021 and, in support of this submission, directed me to an amended copy of the document setting out the working hours for the person who replaced the Applicant after her dismissal.

[11] Based on this, I understand the Respondent’s submission to mean that the Applicant would only have earned $231.00 (based on 1 working day), amounting to $254.10 inclusive of 10% superannuation, between 11 September 2021 and 16 September 2021 but for her dismissal.

[12] In providing the amended working hours for the Applicant’s replacement, which includes working hours between 11 September 2022 and 16 September 2022, the Respondent stated in the email of 13 April 2022, “we haven’t been asked to provide the information for attendance after 11 September 2021”.

[13] The document originally provided to the Commission by the Respondent when it filed its Outline of Arguments on 15 December 2021 did not include working hours for the Applicant’s replacement beyond 10 September 2021.

Superannuation

[14] At paragraph [136] of the decision, I found that the Applicant was also paid one week in lieu of notice and reduced the amount of compensation by $1,155.00 (being the equivalent of one weeks’ pay).

[15] In its email of 13 April 2022, the Respondent clarified that an amount of $115.50 was also paid as superannuation in relation to this notice period and that the amount of compensation should be further reduced by this amount.

[16] The Applicant did not dispute that the amount of compensation should be reduced by $115.50, noting that superannuation was paid in relation to the notice period. I consider it appropriate to reduce the amount of compensation by this amount.

Consideration

[17] At paragraphs [122] to [130] of the Decision, I found:

“[122] The Applicant was earning $1,155.00 per week at the time of her dismissal excluding superannuation. The Applicant submitted that her employment would have been likely to continue for a further period of at least one year and the amount of remuneration that the Applicant would have received or would have been likely to receive during that period is $65,765.70 inclusive of superannuation. 3

[123] The Applicant was dismissed from her employment by the Respondent on 7 July 2021. 4 The Respondent submitted that, from 19 July 2021, employees who lived in the Canterbury‐Bankstown Local Government Area (LGA) were not allowed to come to work and that the Applicant lives in this LGA. The Respondent submitted that the Applicant’s replacement also lived in the LGA, was informed not to come to work after 19 July 2021, started to work two days per week from 16 August 2021 and, from 8 July 2021 to 12 September 2021 (when the Applicant was out of work), only worked 15 days in total.5 Based on this logic, if the Applicant’s submissions and evidence are to be accepted, this would mean that the Applicant would have only earned $3,811.50 inclusive of superannuation. The Respondent provided an extract from its attendance system indicating the working hours of the Applicant’s replacement in support of these submissions.

[124] I accept that the Applicant resides in the LGA 6 and have informed myself as to the effect of the public health orders affecting that LGA. A Public Health (COVID-19) Temporary Movement and Gathering Restrictions) Order 2021 (Public Health Order) came into effect at the beginning of 19 July 2021.

…

[130] The LGA remained an area of concern that subjected residents to restrictions for a considerable amount of time. Notwithstanding this, it was apparent that the Respondent was able to find work for the Applicant’s replacement to carry out two days per week from 16 August 2021 until 9 September 2021 and had made arrangements with the Applicant’s replacement to implement reduced working arrangements for this period. Evidence was not provided in relation to working hours after this date. I am satisfied that, had the Applicant remained in employment, she would have likely reached an arrangement with the Respondent to work a pattern of hours in line with those worked by her replacement between 16 August 2021 and 10 September 2021.”

[18] At the hearing, the Respondent submitted that both the Applicant and her replacement lived in the LGA impacted by the Public Health Order and that, between 8 July 2021 and 15 August 2021, the employee who replaced the Applicant worked 7 working days. The Respondent took me to Attachment E08 filed with its Outline of Argument on 15 December 2021 in support of this.

[19] At the hearing, the Respondent submitted that:

•  from 19 July 2021, persons in the LGA were not allowed to go to work; and

•  the Respondent was in the Cumberland local government area and was closed for two weeks.

[20] During the initial hearing, and as I noted in paragraph [123] of the Decision, the Respondent submitted that the Applicant’s replacement also lived in the LGA, was informed not to come to work after 19 July 2021, started to work two days per week from 16 August 2021 and, from 8 July 2021 to 12 September 2021 (when the Applicant was out of work), only worked 15 days in total.

[21] Given the Respondent’s submission that persons in the LGA were not allowed to work from 19 July 2022, I asked the Respondent why the Applicant’s replacement was able to work two days per week from 16 August 2021. The Respondent said that this was because the government introduced new requirements at this time such that employees from the LGA were able to work if they did a PCR test every three days and their results were negative. The Respondent said that, from that date, it offered its staff work for two days a week but because the business had been impacted it did not offer full time work. I clarified with the Respondent whether the Public Health Order meant that employees could only work two days a week or whether this was a business decision and the Respondent confirmed that the decision to offer employees only two days of work from 16 August 2021 was a business decision.

[22] The Respondent appeared to be of the understanding that, if a business had suffered a loss in earnings of more than 30 percent, it was able to reduce employee hours, but the Respondent was not able to point me to clear evidence of this. The Respondent’s email of 13 April 2022 also indicates that full time employment resumed on 11 October 2021.

[23] During the hearing, the Applicant accepted that employees were not able to attend work between 19 July 2021 and 15 August 2021. However, the Applicant raised the concern that, based on the Respondent’s submissions during the hearing, it may have been in breach of the Public Health Order in enabling employees to work from 16 August 2021, which is a criminal offence, and, if this is the case, the Applicant would not have agreed to work during this period. The Applicant submitted that, if the Respondent is submitting that the Applicant or her replacement could have worked over that period, there needs to be more evidence about that.

[24] The Applicant submitted that, if the Applicant or her replacement was in fact able to return to work from 16 August 2021, but it was a business decision for employees not to return to work, questions arise as to whether this would be a valid stand down under the Act. The Applicant acknowledged that the facts of this matter give rise to complexity and that, if there was a further question regarding the validity of the stand down, this opens up a different set of facts and provisions within the Act that need to be considered.

[25] The Applicant noted that, based on the Respondent’s submissions, the period during which the Applicant would have worked between 8 July 2021 and 16 September 2021 was a period of three weeks and one day.

[26] The Applicant however submitted that:

•  if the Applicant was not able to legally work post 16 August 2021, the 10 week period for the purposes of calculating compensation would start from when she was able to legally work; or

•  if the Applicant was able to legally work but it was a government requirement that she only work two days per week or according to some other restriction,

then in order for the dismissal to be considered procedurally fair, including by the provision of a warning and opportunity to address the issue, then the periods of absence can’t be counted for the time taken in that process and the anticipated period of employment should be extended by that period.

[27] I found at paragraph [121] of the decision:

“[121] While the reason for the dismissal was poor performance and this constituted a valid reason, the Respondent should have implemented performance management measures so that the Applicant could take active steps to improve her performance with the knowledge that her job was at risk if she did not. While I am satisfied that implementation of performance management measures would have meant that the Applicant would have remained in her employment for longer, the evidence of the Respondent’s witnesses suggests that the Applicant’s performance was negatively impacting other team members and indicates that the gap between performance and expectations was going to be a difficult one for the Applicant to bridge. I consider it likely that the Applicant would have shown some degree of improvement had she been alerted to the seriousness of the situation in terms of risk to her employment and this would have given rise to continued employment for a time. However, it is unlikely that the level of improvement would have been so substantial such that the Applicant would not have been terminated at some time by another means following appropriate performance management measures, given the gaps in her performance and the expectations of the Respondent in what appears to be a fast-paced environment where someone was needed to ‘hit the ground running’.”

[28] Having made that finding, I then considered the impact of the Public Health Order on working arrangements at paragraphs [123] to [130] of the Decision.

[29] Having regard to these matters, I then made a determination at paragraph [131] of the Decision that the Applicant’s employment was likely to continue for a further period of 10 weeks.

[30] The Respondent seeks to adjust the amount of compensation ordered to take into account a longer period during which the Applicant was unable to work, in line with the working hours of her replacement between 8 July 2021 and 16 September 2021.

[31] However, as submitted by the Applicant, if the Applicant was unable to work across this time, it would have extended the time taken by the Respondent to implement the performance management measures I have referred to in paragraph [121] by the equivalent of that period of absence.

[32] It is not contested that the Applicant:

•  was dismissed on 8 July 2021;

•  was working full time at the time of her dismissal;

•  was earning $1,155.00 per week (equating to $231.00 per day);

•  commenced her new employment on 13 September 2021; and

•  earns $1,938.08 per fortnight in her new employment (equating to $969.04 per week or $193.808 per day).

[33] At paragraph [131] of the Decision, I have assumed that the Applicant’s employment would have continued for a further period of 10 weeks ending on 16 September 2021 and that during this period the Applicant would have likely received remuneration of $9,909.90 (including 10% superannuation). This was based on an assumption that she was able to work 39 working days, or 7 weeks and 4 working days (being the sum of days set out in paragraph [131] of the Decision), across the 10 week period, taking into account the disruptions in working arrangements due to COVID-19 at that time. I consider that 39 working days, or 7 weeks and 4 working days, would have been a reasonable period in which the Respondent should have implemented the performance management measures I have referred to in paragraph [121] of the Decision.

[34] Noting that the Applicant started her new job on 13 September 2021, at paragraph [135] of the Decision, I reduced this amount by the income she would have received, being $775.232 based on four working days between 13 and 16 September 2021.

[35] However, in light of the Respondent’s contentions, I have reconsidered the question of compensation, giving consideration to the effects of the Public Health Order. As set out below, due to the Public Health Order, I consider there are three possible scenarios that may apply in the calculation of compensation. I set these out below before giving consideration as to which of these scenarios should be applied in the calculation of compensation.

Scenario 1: Public Health Order prohibited the Applicant from attending work from 19 July 2021 until 11 October 2021

[36] In this scenario, in which persons in the LGA are prohibited from attending the workplace between 19 July 2021 and 11 October 2021, the Applicant would have worked:

•  7 working days between 8 July 2021 and 18 July 2021, until the Public Health Order came into effect on 19 July 2021 impacting persons living in the LGA; and

•  0 working days between 19 July 2021 and 16 September 2021, being the date that is 10 weeks from the date of her dismissal.

[37] This is a total of 7 working days.

[38] However, in my Decision, I assumed that the period the Applicant would have been in the workplace, and therefore been subject to appropriate performance management measures, was 39 working days, or 7 weeks and 4 working days.

[39] Taking into account the further disruptions to work as a result of the Public Health Order, it would be appropriate to extend the original anticipated period of employment of 10 weeks by 32 working days, or 6 weeks and 2 working days, in this scenario, with the effect that the Applicant would be working for 39 working days across the anticipated employment period.

[40] This means that, in this scenario:

•  I anticipate the Applicant would have remained employed until 23 November 2021 being an actual period of 19 weeks and 5 calendar days post dismissal; and

•  the Applicant would have worked a further 32 working days, or 6 weeks and 2 working days, between 11 October 2021 and the end of her anticipated period of employment, being 23 November 2021.

[41] In total, this is 39 working days, or 7 weeks and 4 days, totalling $9,909.90 inclusive of 10% superannuation.

[42] However, the Applicant did secure alternative employment commencing 13 September 2021, working five days per week, and earned $193.808 per day from that employment.

[43] Between 13 September 2021 and 23 November 2021, there are 52 working days for which she would have received pay and I therefore anticipate that she would have earned $10,078.016 across this period.

[44] These earnings between 13 September 2021 and 23 November 2021 would reduce the amount of compensation ordered, reducing compensation to zero, particularly as the Applicant was able to work on more days during and be paid for those days during the anticipated period of employment than what she would have had she remained employed by the Respondent. This brings into question the plausibility of this scenario.

Scenario 2: Public Health Order did not permit the Applicant to work from 19 July 2021 until 16 August 2021 but permitted work thereafter, subject to a change in working hours in line with the Applicant’s replacement

[45] In this scenario, the Applicant would have worked:

•  7 working days between 8 July 2021 and 18 July 2021, until the Public Health Order came into effect on 19 July 2021 impacting persons living in the LGA;

•  0 working days between 19 July 2021 and 15 August 2021, during which the Public Health Order prohibited persons in the LGA from coming to work;

•  8 working days for the period between 16 August 2021 and 10 September 2021, in line with the hours worked by her replacement; and

•  2 working days between 11 September 2021 and 16 September 2021. I note that the updated working hours provided by the Respondent indicates that the Applicant’s replacement only worked one day in the week commencing 13 September 2021. It is unclear as to why the Applicant’s replacement only worked one day in this week. However, the Respondent has submitted that the Applicant’s replacement was brought back to work two days per week from 16 August 2021 as a business decision, so this appears to be an anomaly.

[46] This is a total of 17 working days.

[47] However, in my Decision, I assumed that the period the Applicant would have been in the workplace, and therefore been subject to appropriate performance management measures, was 39 working days, or 7 weeks and 4 working days.

[48] Taking into account the further disruptions to work as a result of the Public Health Order, it would be appropriate to extend the original anticipated period of employment by 22 working days in this scenario so that the Respondent had 39 working days in which to implement performance management measures.

[49] Assuming that the Applicant worked for the Respondent 2 days per week from 16 August 2021, in this scenario I anticipate the Applicant would have remained employed until 6 December 2021, taking into account the Labour Day public holiday in New South Wales and assuming the two days worked were Monday and Tuesday, as worked by her replacement.

[50] This means the Applicant would have worked a further 22 working days between 17 September 2021 and the end of her anticipated period of employment.

[51] In total, this is 39 working days, or 7 weeks and 4 working days, totalling $9,909.90 inclusive of 10% superannuation.

[52] However, the Applicant did secure alternative employment commencing 13 September 2021 and earned $193.808 per day from that employment, working five days per week. Between 13 September 2021 and 6 December 2022, there are 61 days for which the Applicant would have been paid and I therefore anticipate that she would have earned $11,822.288 across this period.

[53] In this scenario, these earnings between 13 September 2021 and 6 December 2021 would reduce the amount of compensation ordered to zero, particularly as the Applicant was able to work on more days during and be paid for those days during the anticipated period of employment than what she would have had she remained employed by the Respondent. This brings into question the plausibility of this scenario.

Scenario 3: Public Health Order did not permit the Applicant to work from 19 July 2021 until 16 August 2021 but permitted work thereafter without restriction

[54] In this scenario, and in circumstances where the Applicant would not have suffered a reduction in her working hours after being permitted to return to the workplace, the Applicant would have worked the following days:

•  7 working days between 8 July 2021 and 18 July 2021, until the Public Health Order came into effect on 19 July 2021 impacting persons living in the LGA;

•  0 working days between 19 July 2021 and 15 August 2021, during which the Public Health Order prohibited persons in the LGA from coming to work; and

•  24 working days between 16 August 2021 and 16 September 2021, being the date 10 weeks from the date of her dismissal.

[55] This means that between 8 July 2021 and 16 September 2021, being the date that is 10 weeks from the date of her dismissal, the Applicant would have been in the workplace for 31 working days, or 6 weeks and 1 working day.

[56] However, in my Decision, I assumed that the period the Applicant would have been in the workplace, and therefore subject to appropriate performance management measures, was 39 working days, or 7 weeks and 4 working days.

[57] Taking into account the further disruptions to work as a result of the Public Health Order, I consider it appropriate to extend the anticipated period of employment by 8 working days, or 1 week and 3 working days. This means that I anticipate the Applicant would have remained employed until 28 September 2021, being an actual period of 11 weeks and 5 calendar days post dismissal.

[58] This means the Applicant would have worked a further 8 working days, or one week and 3 working days, between 17 September 2021 and the end of her anticipated period of employment, being 28 September 2021.

[59] In total, this is 39 working days, or 7 weeks and 4 working days, totalling $9,909.90 inclusive of superannuation.

[60] However, the Applicant did secure alternative employment commencing 13 September 2021 and earned $193.808 per day from that employment. Between 13 September 2021 and 28 September 2021, there are 12 working days and I therefore anticipate that she would have earned $2,325.696 across this period.

[61] In this scenario, these earnings between 13 September 2021 and 28 September 2021 should reduce the amount of compensation ordered, leaving $7,584.204 gross in compensation.

[62] The Applicant was also paid one week in lieu of notice, further reducing the amount by $1,155.00, plus a further $115.50 in superannuation, leaving $6,313.70 gross in compensation inclusive of 10% superannuation.

Conclusion

[63] I have reconsidered the impact of the Public Health Order, as varied throughout 2021, on the ability of the Applicant to work in order to determine which of the above scenarios should be applied in the calculation of compensation.

[64] If Scenario 1 is correct, it would mean that the Respondent has committed a criminal offence in allowing the Applicant’s replacement to work at its premises in breach of public health orders from 16 August 2021 until 11 October 2021. If the Applicant was leaving the LGA for work, it may also mean that she was in breach of public health orders in commencing new, full time employment on 13 September 2021. The Applicant has submitted that she would not have worked in breach of a public health order. As such, I have given further consideration to the operation of the public health orders below.

[65] In particular, I have reviewed the Public Health Order and its changes as at 16 August 2021. The LGA was identified in clause 24DA as a “declared area”. While clause 24E had the effect that a person whose place of residence was in a declared area must not, for the purposes of work, travel outside the declared area, there were some exemptions to this for “authorised workers”. The note in clause 24E provided that a list of authorised workers exempt from clause 24E was published on the NSW government website “www.nsw.gov.au”. Further, clause 24B required that an “affected worker” must not enter premises for work in a local government area in which the affected worker resides unless they had been tested for COVID-19 72 hours earlier and had evidence of this available. Clause 24B enabled the Chief Health Officer to publish a notice on the NSW Health website identifying which categories of “affected worker” were subject to this requirement. I am sympathetic to the challenges confronted by the parties in gathering evidence turning to the effect of public health orders when the requirements and websites were changing so regularly such that the information available is not current. However, based on my own research, it appears that, if a worker was in the manufacturing sector in a workplace manufacturing building supplies to support construction, they were an authorised worker. It also appears that the Applicant was an “affected worker” by virtue of living in the LGA. On that basis, I accept that, from 16 August 2022, persons in the LGA were able to attend work subject to a negative COVID-19 test.

[66] I also accept the Respondent’s explanation that the decision to bring the Applicant’s replacement back to work two days per week was a business decision rather than a consequence of the operation of the Public Health Order. The Applicant was employed on a full time basis and, as submitted by the Applicant, questions arise as to whether the Respondent would have been able to lawfully stand the Applicant down on a partial basis pursuant to the stand down provisions in the Act or otherwise unilaterally vary her contracted hours. Given the Respondent’s explanation that the reduction in hours was a business decision, I am not persuaded there was a stoppage of work or other factor that would enliven the stand down provisions in the Act or any other ability to unilaterally change the Applicant’s working hours, assuming she was ready, willing and able to work when the Public Health Order restrictions lifted.

[67] In these circumstances, I consider that scenario 3 above is the most plausible and that the Decision should accordingly be varied in line with that scenario.

[68] On the basis of the findings above, I have decided to exercise my power under s.603 of the Act to vary the Decision. The Decision [[2022] FWC 782] is varied so that paragraphs [130] to [152] are deleted and replaced as follows:

“[130] The LGA remained an area of concern that subjected residents to restrictions for a considerable amount of time. However, from 16 August 2021, restrictions were eased such that people living in the LGA were able to return to work subject to a negative PCR test. While the Respondent appeared to have reduced hours for the Applicant’s replacement, this was a business decision and in these circumstances I am satisfied that, but for her dismissal, the Applicant would have been ready, willing and able to work pursuant to her normal full time hours.

Findings

[131] I find that:

•  the Applicant’s employment was likely to continue until 28 September 2021, being an actual period of 11 weeks and 5 calendar days post dismissal;

•  the remuneration likely to have been received by the Applicant during that period would have been $9,909.90 including superannuation calculated at 10% comprised of:

•  7 working days between 8 July 2021 and 18 July 2021, until the Public Health Order came into effect on 19 July 2021 impacting persons living in the LGA, amounting to $1,617.00;

•  0 working days between 19 July 2021 and 15 August 2021, during which the Public Health Order prohibited persons in the LGA from coming to work, amounting to zero; and

•  32 working days between 16 August 2021 and 28 September 2021, amounting to $7,392.00.

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

[132] Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the FW Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f) of the FW Act. Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula.   

[133] The Applicant says she has earned $22,526.59 from employment or other work since the dismissal until the filing of her submissions on 1 December 2021. This not challenged by the Respondent. Assuming the Applicant continues to receive $1,938.08 per fortnight, I find that the amount of remuneration earned by the Applicant from employment or other work during the period since the dismissal is $28,517.46 until the date of the order.

[134] Based on the Applicant securing alternative employment and having been paid an amount of $1,938.08 per fortnight in relation to two weeks’ worth of work, I am satisfied that the amount of income reasonably likely to be earned by the Applicant between the making of the order for compensation and the payment of compensation is a further $1,938.08.  

[135] As the Applicant commenced receiving remuneration from her new job from 13 September 2021 and this is before the time when her employment would, in my view, have ended (i.e. 28 September 2021), earnings between 13 September 2021 and 28 September 2021 should reduce the amount of compensation ordered. This is a period of two weeks and two working days which amounts to $2,325.70 based on the Applicant’s pay of $1,938.08 per fortnight.

[136] In mathematical terms, this means deducting the actual and likely income for Applicant for the period from the date of her dismissal ($2,325.70) from the amount calculated for the purpose of s.392(2)(c) ($9,909.90), which leaves $7,584.20 gross in compensation, inclusive of superannuation. The Applicant was also paid one week in lieu of notice, further reducing the amount by $1,155.00, plus superannuation of $115.50 leaving $6,313.70 gross in compensation, inclusive of superannuation.

Length of service – s.392(2)(b) and any other matters – s.392(2)(g)

[137] The Applicant’s length of service between 24 November 2020 and 7 July 2021 is not a lengthy period of time.  As such, I apply a 5% discount to the amount of $9,909.90 reducing the amount of compensation by a further $495.50 to $5,818.20.

[138] I do not consider there is any basis for any deduction for contingencies in this matter and it will be left to the Respondent to deduct taxation required by law.

Effect of the order on the viability of the Respondent’s enterprise – s.392(2)(a)

[139] The Respondent has made submissions about the impacts of the COVID-19 on its enterprise that infer an effect on viability. As stated previously by Deputy President Hamilton, “[s]uch an inference must not be simply ‘conjecture or speculation’ 7, and there must be facts which in my view make an effect on viability of the enterprise sufficiently probable. The existence of trading difficulties and a general submission that ‘any additional expense will certainly be a problem for the business’ is not a submission that the viability of the business will be affected or even that it will probably be affected. … A mere submission that difficulties for the business will occur is, with respect, not enough.”⁸

[140] As the Commission observed in the context of earlier legislation, “where an employer seeks to rely on the circumstances referred to in s.170CH(7)(a) [which was in terms substantially the same as s.392(2)(a)], the employer must present evidence and/or argument as to the financial situation of the undertaking and the likely effect that an order for compensation would have on the viability of the undertaking...”.⁹

[141] While the Respondent made various submissions about the impacts of the COVID-19 on its enterprise, the evidence before the Commission does not establish that an order for compensation would not have an effect on the viability of the employer’s enterprise.

Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal – s.392(2)(d)

[142] The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal. 10 What is reasonable depends on the circumstances of the case.11

[143] The Applicant’s evidence was that she was out of work and searching for work from 8 July 2021 to 10 September 2021 and commenced a new job on 13 September 2021, earning $1,938.08 per fortnight inclusive of superannuation.

[144] I am satisfied that the Applicant took reasonable steps to mitigate her loss by actively seeking and ultimately obtaining alternative employment.

Misconduct – s.392(3)

[145] I am not satisfied that the Applicant engaged in misconduct so no deduction is required under s.392(3) of the FW Act.

Compensation cap – s.392(5) & (6)

[146] I find that the total amount of the remuneration received by the Applicant and to which she was entitled during the 26 weeks immediately before the dismissal was $28,773.94 in wages and $2,739.31 in superannuation (i.e. $31,513.25).

[147] The high income threshold immediately before the dismissal was $158,500.00. Half of that amount is $79,250.00.

[148] The amount of compensation ordered by the Commission must therefore not exceed $28,773.94 in wages (plus $2,739.31 if superannuation is to be included).

Instalments – s.393

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

Shock, Distress – s.392(4)

[150] The amount of compensation calculated must not and will not include a component for shock, distress, humiliation or other analogous hurt caused to the Applicant by the manner of her dismissal.

Conclusion

[151] I am satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair and that an order for compensation equating to $5,818.20, less taxation to be deducted as required by law, is appropriate having regard to all the circumstances of the case.”

[69] An Order PR744457 requiring the payment of this amount within 14 days will be issued separately and concurrently with this decision, revoking both Order PR740125 issued on 8 April 2022 and Interim Order PR740660 issued on 26 April 2022.

COMMISSIONER

Appearances:

Mr G Dircks on behalf of the Applicant.

Ms F Zou on behalf of the Respondent.

Hearing details:

2022.

Sydney (by Telephone).

April 21.

Printed by authority of the Commonwealth Government Printer

<PR744455>

 1   Order PR740125.

 2   Interim Order PR740660.

 3   Applicant, ‘Outline of Submissions – Unfair Dismissal’, filed 1 December 2021, [55](1).

 4   Applicant, ‘Form F2 – Unfair dismissal application’, filed 28 July 2021, 1.3, 1.4; Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 10 August 2021, 1.3, 1.4, 3.1.

 5   Respondent, ‘Outline of Argument’, filed 15 December 2021, 6b; Respondent, ‘Payroll Advices for Andreas Pistevos between 1 July 2021 and 22 September 2022’, filed 15 December 2021; Respondent, ‘Working Hours for Andreas (extracted from Attendance system file)’, filed 15 December 2021.

 6   Applicant, ‘Form F2 – Unfair dismissal application’, filed 28 July 2021, 1; Respondent, ‘Employment Separation Certificate dated 9 July 2021’, filed 10 August 2021.

 7   Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [39].

8 Beames v BDRP Falconer Pty Ltd PR916075 (AIRC, Hamilton DP, 28 March 2002), [49].

9 Moore v Highpace Pty Ltd Print Q0871 (AIRCFB, Boulton J, Watson SDP, Whelan C, 18 May 1998).

 10   Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].

 11   Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.