| [2022] FWC 2368 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nina Marie Elliott
v
Care For Kids Group Pty Ltd
(U2022/2039)
COMMISSIONER P RYAN |
SYDNEY, 6 SEPTEMBER 2022 |
Application for an unfair dismissal remedy
[1] Ms Nina Elliott (Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Care for Kids Group Pty Ltd (Respondent).
[2] The matter was heard before me on 8 August 2022.
[3] I exercised my discretion to grant permission to the Applicant to be represented by a lawyer, as I was satisfied as to the matters set out in s.596 (2)(a) of the FW Act. The Applicant was represented by Mr J Tass, solicitor. The Respondent was represented by Mr O Meehan.
[4] Witness statements were tendered from the following persons:
• The Applicant (Exhibits A1 and A2);
• Mr Mark Elliott, the Applicant’s father (Exhibit A3); and
• Mr Adrian Fonseca, the chairperson of the Respondent’s board of directors (Exhibit R1).
[5] The Applicant, Mr Elliott and Mr Fonseca also gave evidence at hearing.
[6] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[7] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
[8] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[9] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[10] On 23 January 2019, the Applicant commenced employment with an entity known as Care for Kids Internet Services Pty Ltd, in the part-time position of administrative assistant. 1
[11] Care for Kids Internet Services Pty Ltd was owned and operated by the Applicant’s parents, Mr Mark Elliott and Ms Roxanne Elliott. 2
[12] On 15 December 2020, Toddle Enterprise Group Pty Ltd (Toddle) purchased the business of Care for Kids Internet Services Pty Ltd. 3 Prior to the acquisition of Care for Kids Internet Services Pty Ltd by Toddle, Mr Fonseca queried the value of the Applicant’s role to the business, but ultimately decided to employ the Applicant.4
[13] On 16 December 2020, the Applicant and her parents were employed by Toddle. 5
[14] The Applicant was employed by Toddle in the position of “Admin Clerk” and the terms and conditions of the Applicant’s employment were set in a document titled “Employment Offer”, which relevantly provides as follows:
“We are delighted to offer you the position of admin clerk with Toddle Enterprises Group Pty Ltd (“Toddle”). To help you understand the full extent of our offer, I have set out our basic conditions of employment.
Commencement Date
We have agreed to recognise your service with and preserve your continuity of employment from Care for Kids Internet Services Pty Ltd (“Care for Kids”), that date being 23 January 2019.
We confirm that you will commence employment with Toddle on Wednesday 16 December 2020, and you will be employed on the same terms and conditions (including in regard to obligations of confidentiality and flexible working arrangements) as you have with Care for Kids.
Hours of work
You are employed on a permanent part-time basis for approximately 10 hours per week. Additional hours may be needed from time to time and will be agreed with Toddle as required.
Your ordinary hours and days of work (ordinary hours) are Monday and Tuesday 10am to 3pm.
You will continue to prepare daily timesheets and submit all team sheets for the month to Toddle within two business days of each month end.
Salary
$25 per hours plus employer superannuation contributions.
Salary will be paid via electronic transfer, monthly in arrears, on the 15th of the following month.
Notice period
Should either party – wish to terminate employment for any reason (other than grounds that warrant instant dismissal), four weeks’ notice in writing or the payment or forfeiture of four weeks total remuneration is required.
This period of notice will continue throughout your employment with Toddle unless a new period is agreed.” 6
(emphasis added)
[15] There were no discussions between the Applicant and the Respondent concerning her employment being conditional upon her parents remaining employed with the Respondent and the Applicant did not agree to any such condition. 7
[16] The Applicant’s role included the administration and management of newsletters and article content for websites and digital/social media management. During her employment, the Applicant reported to her mother, Ms Roxanne Elliott. 8
[17] On 6 December 2021, Toddle changed its name to Care for Kids Group Pty Ltd, the Respondent. 9
[18] In the week commencing 24 January 2022, the Applicant worked her usual days and hours. On 28 January 2022, the Applicant became aware that she was locked out of the Respondent’s email and IT system. Shortly thereafter, the Respondent sent correspondence by email to the Applicant’s personal email account advising that her employment was terminated with immediate effect. 10 The letter of termination states:
Termination of employment
Your employment with the Care for Kids Group is terminated with immediate effect.
Under your contract, you are entitled to 4 weeks’ pay in lieu of a notice period, and any accrued but unpaid annual leave entitlements.
Your final payment will be processed into your bank account on the next pay period and will include payment for the above entitlements.
We expect that you will comply with usual post-termination obligations, including not to disparage the Company and its employees, to return the Company’s property and protect the Company’s confidential information.
The Company reserves all rights available to it.
[19] The Respondent also terminated the employment of Mr Mark Elliott and Ms Roxanne Elliott on 28 January 2022. 11
[20] The Applicant was not notified of the termination of her employment prior to receiving the email correspondence on 28 January 2022. 12 Furthermore, the Applicant only became aware of the reason for her dismissal when she received the Form F3 Employer Response filed by the Respondent in this matter13 which stated that it was implicit that the Applicant’s employment would cease if the employment of her parent’s ceased.14
[21] As at 28 January 2022, the Respondent employed 13 employees. 15
[22] As at the date of the hearing, the Applicant had not obtained new employment.
[23] The Applicant submitted that she was a person who was protected from unfair dismissal and that there was not a valid reason for the termination of her employment, nor was she afforded any procedural fairness, having been informed of her dismissal after it occurred.
[24] The Applicant submitted that the Respondent’s case that the Applicant’s employment would cease if the employment of her parent’s ceased is absurd and not supported by any evidence.
[25] The Applicant submitted that she is not seeking reinstatement, as it would not be appropriate and that she is seeking compensation. In relation to attempts by the Applicant to mitigate her loss, it was submitted that the Applicant’s medical condition has impacted her ability to seek alternative employment.
[26] The Respondent submitted that the Applicant worked solely for her parents and that her employment ended the same day as the employment of her parents.
[27] In its written submissions, the Respondent contends that it was implicit that the Applicant’s employment would cease if the employment of her parent’s ceased.
[28] In closing oral submissions, the Respondent submitted “its perhaps unfortunate that a side agreement…wasn’t properly documented but the Respondent contends that there was an arrangement. It was clearly communicated to Mr Mark and Ms Roxanne Elliott”. On that basis, the Respondent submitted that it had a valid reason for the termination of the Applicant’s employment.
[29] The Respondent submitted that this matter is part of a wider dispute between the Respondent and the Applicant’s parents.
[30] The Respondent submitted that the Applicant has not made satisfactory efforts to mitigate her loss.
[31] The Respondent stated that it does not rely on the Small Business Fair Dismissal Code.
[32] A threshold issue to determine is whether the Applicant has been dismissed from their employment.
[33] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
[34] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
[35] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
[36] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
[37] Section 396 of the FW Act requires the Commission to decide the four initial matters before considering the merits of the application.
(a) Whether the application was made within the period required in s.394(2);
(b) Whether the Applicant is a person protected from unfair dismissal;
(c) Whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d) Whether the Applicant’s dismissal was a case of genuine redundancy.
[38] There is no dispute between the parties, and I am satisfied on the evidence that:
(a) the application was made within the period required in s.394(2);
(b) the Applicant is a person protected from unfair dismissal; and
(c) the Applicant’s dismissal was not a case of genuine redundancy.
[39] Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:
(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and
(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.
[40] As mentioned above, I find that the Respondent was a small business employer within the meaning of s.23 of the FW Act at the relevant time, having fewer than 15 employees (including casual employees employed on a regular and systematic basis).
[41] Therefore, and despite the Respondent’s position that it does not rely on the Small Business Fair Dismissal Code, it remains necessary to consider whether the dismissal was consistent with the Small Business Fair Dismissal Code. 16
[42] The Small Business Fair Dismissal Code provides as follows:
“Summary dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”
[43] Although the termination of the Applicant’s employment was with immediate effect, the Applicant was not dismissed for serious misconduct as defined in reg. 1.07 and received payment in lieu of notice. Therefore, the Applicant’s dismissal is to be assessed against the “other dismissal” section of the Small Business Fair Dismissal Code. 17
[44] In Lloyd & Co Pty Ltd v Suttie 18, the Full Bench stated that the crucial considerations under the “other dismissal” section “are whether the employer gave the employee a valid reason why he or she was at risk of being dismissed, warned the employee of the risk of being dismissed if there is no improvement, gave the employee an opportunity to respond to the warning, and gave the employee a reasonable chance to rectify the problem.”19
[45] It is clear in the matter before me that the Respondent did not give any reason to the Applicant that she was at risk of being dismissed prior to the dismissal. Furthermore, the Respondent did not provide the Applicant any warning or otherwise provide an opportunity to rectify any issues or concerns prior to her dismissal.
[46] Accordingly, I find that the Applicant’s dismissal was not consistent with the Small Business Fair Dismissal Code. Having found that the dismissal was not consistent with the Small Business Fair Dismissal Code, I now turn to a consideration as to whether the dismissal was harsh, unjust or unreasonable.
[47] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[48] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 20
[49] I set out my consideration of each below.
[50] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 21 and should not be “capricious, fanciful, spiteful or prejudiced.”22 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.23
[51] The Respondent’s contention that there was some form of agreement between the Applicant’s parents and the Respondent that the Applicant’s employment would be terminated concurrently if, and when, the employment of her parents terminated cannot be accepted for the following reasons.
[52] First, there is no evidence that supports that contention. The height of Mr Fonseca’s evidence is that he queried the value of the Applicant’s role to the business, but ultimately decided to employ the Applicant. Further, Mr Elliott’s evidence is that he did not have any discussions with Mr Fonseca, or any other representatives of the Respondent, concerning the Applicant’s employment being contingent upon the Applicant’s parents remaining employed with the Respondent.
[53] Second, irrespective of any agreement reached between the Applicant’s parents and the Respondent, it was not contended (nor is there any evidence) that the Applicant’s parents were acting as agent for the Applicant, or that they held themselves out as authorised to contract on behalf of the Applicant. 24
[54] Third, the Applicant’s contract of employment makes no reference to any such agreement or condition. The Applicant’s contract of employment was for part-time employment on an ongoing basis and recognised the Applicant’s prior service with Care for Kids Internet Services Pty Ltd.
[55] Fourth, the Applicant’s evidence that there were no discussions between the Applicant and the Respondent concerning her employment being conditional upon her parents remaining employed with the Respondent, and that she did not agree to any such condition, was unchallenged.
[56] Accordingly, and in all the circumstances, I find that there was no valid reason for the Applicant’s dismissal.
[57] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a). 25
[58] As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances. 26
[59] As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances. 27
[60] The Respondent did not meet with the Applicant prior to her dismissal. Accordingly, I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present in any discussions relating to the dismissal.
[61] However, in the circumstances, I regard this factor as a neutral consideration.
[62] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
[63] Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact. This factor weights neutrally in my consideration.
[64] The Respondent submitted that the absence of a dedicated human resource management specialist or expert would not have affected the outcome but would have resulted in a different procedure being followed. 28
[65] I am satisfied that the absence of a dedicated human resource management specialist or expertise impacted upon the procedure by which the Respondent carried out the dismissal.
[66] However, this does not relieve the Respondent of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”29 This factor weighs in favour of the dismissal being unfair.
[67] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[68] Neither party made any submissions in relation to this factor, and I have not taken any other matter into consideration.
[69] I have made findings in relation to each matter specified in s.387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 30
[70] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable.
[71] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.
[72] Being satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act, I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
[73] Under s.390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
[74] The Applicant did not seek the remedy of reinstatement. In such circumstances, “the Applicant’s disposition is a sure guide to the Commission as to whether it would be appropriate to reinstate or re-employ the Applicant. To act contrary to the Applicant’s desired position in this respect would be to give effect to an order that may not yield a productive or cooperative workplace.”31
[75] In all the circumstances I find it would be inappropriate to reinstate the Applicant. Therefore, I need to consider whether compensation is appropriate.
[76] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…” 32
[77] Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion. 33
[78] Having regard to all the circumstances of the case, including the fact that the Applicant has suffered financial loss as a result of her unfair dismissal and seeks compensation, I consider that an order for payment of compensation to her is appropriate.
[79] Section 392(2) of the FW Act requires all the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a) the effect of the order on the viability of the Respondent’s enterprise;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
[80] I consider all the circumstances of the case below.
Effect of the order on the viability of the Respondent’s enterprise
[81] There is no dispute and I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise.
Length of the Applicant’s service
[82] The Applicant’s length of service was 3 years and 1 week. I consider that the Applicant’s length of service does not support reducing or increasing the amount of compensation ordered.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
[83] As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.” 34
[84] The Applicant submitted that the Applicant’s employment would have been likely to continue for a further period of six months and the amount of remuneration that the Applicant would have received or would have been likely to receive during that period is $6,500.00 plus superannuation.
[85] The Respondent did not make any submissions on this point.
[86] As stated above, the Respondent submitted that if it had access to a human resources specialist or expert, it would have resulted in a different procedure being followed. Taking into consideration Mr Fonseca’s evidence concerning the perceived value of the Applicant’s role to the Respondent, it is possible that the Respondent may have formed the view that they no longer needed the Applicant’s role. Another possibility is that the Respondent may have adopted a procedurally fair approach which may have resulted in the termination of the Applicant’s employment. Alternatively, it may have resulted in the Respondent gaining a better understanding of the value the Applicant brings to the organisation.
[87] In all the circumstances and weighing up the likelihood of the various possibilities, I find that the Applicant would have remained employed by the Respondent for a period of 12 additional weeks if she had not been dismissed on 28 January 2022.
[88] The Applicant’s gross weekly remuneration was $250.00 per week. It follows that in 12 weeks she would have received $3,000.00 gross.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
[89] The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal. 35 What is reasonable depends on the circumstances of the case.36
[90] In response to an order to produce documents, the Applicant produced evidence of one job application that was submitted on 17 May 2022. 37 However, the Applicant submitted that her attempts to seek alternative employment have been severely affected by a medical condition. In support of this submission, the Applicant relies on a letter from her treating medical practitioner.38
[91] The Respondent submitted that the Applicant has not taken satisfactory steps to mitigate her loss and that there is an abundance of jobs available. The Respondent did not challenge the Applicant’s contention that her attempts to mitigate her loss have been affected by her medical condition.
[92] In all the circumstances, I do not consider it appropriate to reduce the compensation on this account.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
[93] The Applicant’s evidence, which is not challenged by the Respondent, is that she has earned nil income from employment or other work since the dismissal. Although, I note the Applicant received a payment of 32.1 hours in lieu of notice, which amounts to $802.50 gross.
[94] I am satisfied that the amount of remuneration earned by the Applicant from employment or other work during the period since dismissal is $802.50.
Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation
[95] The Applicant’s evidence is that the Applicant is not likely to earn any income in the period between the making of the order for compensation and the payment of compensation.
[96] That evidence is not challenged by the Respondent.
[97] 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 nil.
Other relevant matters
[98] Other relevant matters include whether to discount any amount for contingencies. The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision.
[99] In this matter, as the anticipated period of employment has already passed (29 January 2022 to 29 April 2022), there is no uncertainty about the Applicant’s earnings, capacity or any other matters during that period of time.
Compensation – how is the amount to be calculated?
[100] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 39 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages40.”41
[101] The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 1
[102] I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated the employment to be $3,000.00 on the basis of my finding that the Applicant would likely have remained in employment for a further period of 12 weeks. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”. 42
Step 2
[103] I have found that the amount of remuneration earned by the Applicant from the date of dismissal was $802.50, and 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 nil.
[104] Only monies earned since termination for the anticipated period of employment are to be deducted. 43 I therefore deduct the sum of $802.50 from $3,000.00.
Step 3
[105] As the anticipated period of employment has passed, I do not make any deduction for contingencies.
Step 4
[106] I have considered the impact of taxation but have elected to settle a gross amount of $2,197.50 and leave taxation for determination.
[107] Having applied the formula in Sprigg, I am satisfied that the level of compensation is appropriate having regard to all the circumstances of the case. In accordance with s.392(4) of the FW Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation – is the amount to be reduced on account of misconduct?
[108] I am satisfied that the Applicant did not commit any misconduct. Therefore, this is not relevant to the assessment of compensation and no reduction on account of misconduct has been made.
Compensation – how does the compensation cap apply?
[109] Section 392(5) of the FW Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:
(a) the amount worked out under section 392(6); and
(b) half the amount of the high income threshold immediately before the dismissal.
[110] The amount worked out under section 392(6) is the total of the following amounts:
(a) the total amount of the remuneration:
(i) received by the Applicant; or
(ii) to which the Applicant 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 Applicant 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 Applicant for the period of leave in accordance with the regulations.
[111] The amount of $2,197.50 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which the Applicant was entitled in her employment with the Respondent during the 26 weeks immediately before her dismissal. In those circumstances, I am satisfied that there is no basis to reduce the amount of $2,197.50 by reason of s.392(5) of the FW Act.
[112] No application was made by the Respondent for any amount of compensation awarded to be paid in the form of instalments.
Conclusion on compensation
[113] In light of the above, I will make an order that the Respondent pay $2,197.50 gross less taxation as required by law to the Applicant in lieu of reinstatement within 21 days of the date of this decision.
COMMISSIONER
Appearances:
Mr J Tass, solicitor, for the Applicant.
Mr O Meehan, for the Respondent.
Hearing details:
Sydney (via Microsoft Teams video-link):
2022.
8 August
<PR745543>
1 Exhibit A1 at [5].
2 Ibid at [10].
3 Ibid at [6].
4 Exhibit A3 at [6]; Exhibit R1 at [2].
5 Exhibit A1 at [7]; Exhibits R2 at clause 2.2; Exhibit R3 at clause 2.2.
6 Exhibit A1 at [7], Annexure A.
7 Ibid at [7] and [26].
8 Ibid at [10] and [13]-[15].
9 Australian Business Register.
10 Exhibit A1 at [19]-[21].
11 Exhibit R1 at [3].
12 Exhibit A1 at [21].
13 Ibid at [24].
14 Form F3 Employer Response at q3.1.
15 Form F3 Employer Response at q1.7; Respondent’s Outline of Submissions at [3i].
16 TIOBE Pty Ltd T/A TIOBE v Cathy (Yaqin) Chen [2018] FWCFB 5726 at [14]-[24].
17 Ryman v Thrash Pty Ltd [2015] FWBFC 5264 at [41].
19 Ibid at [19].
20 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].
21 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
22 Ibid.
23 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
24 Francis v South Sydney District Rugby League Football Club Ltd [2002] FCA 1306 at [106].
25 Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55].
26 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762 at [:L46]-[49].
27 Ibid.
28 Respondent’s Outline of Submissions at [3l].
29 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002) at [21].
30 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]-[7].
31 Taylor v C-Tech Laser Pty Ltd [2013] FWC 8732 at [58].
32 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [9].
33 Vennix v Mayfield Childcare Ltd [2020] FWCFB 550 at [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171 at [5]-[7].
34 He v Lewin [2004] FCAFC 161 at [58].
35 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002) at [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001) at [45].
36 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002) at [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
37 Exhibit A4.
38 Exhibit A2 at [7]-[9], Annexure A.
39 (1998) 88 IR 21.
41 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206 at [16].
42 Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at [34].
43 Ibid.