Fair Work Act 2009
s.394—Unfair dismissal

Vanessa May Miller
v
YCC Group Pty Ltd
(U2022/7994)

Application for relief from unfair dismissal – dismissal unfair – compensation ordered.

Introduction

[1] Ms Vanessa Miller was employed by YCC Group Pty Ltd trading as Your Community Care (YCC) until her summary dismissal on 14 July 2022. Ms Miller contends that her dismissal was harsh, unjust and unreasonable. YCC denies those allegations.

[2] I heard Ms Miller’s unfair dismissal application, by video conference, on 16 November 2022. Ms Miller gave evidence in support of her case. YCC filed and served documents in response to Ms Miller’s unfair dismissal application, but there was no appearance for or on behalf of YCC at the hearing. That was not surprising, since Ms Nicole Peluso, a director of YCC, had previously informed the Fair Work Commission (Commission) that she did not intend on appearing at the hearing.

[3] On the day prior to the hearing, Ms Peluso informed the Commission that YCC “no longer trades and has not done so since the 13^th October 2022 and has no money as per [the attached] bank statement”. There was no material before the Commission to suggest that YCC has gone into liquidation or administration.

[4] I admitted into evidence, and have taken into account, each document filed by YCC in response to Ms Miller’s unfair dismissal application. 1 I also put the material contentions contained within those documents to Ms Miller during her oral evidence.

Relevant facts

[5] Ms Miller commenced casual employment with Nicole Ellen Wilson (later Nicole Peluso) trading as Chisholm Community Healthcare as a Disability Support Worker in February 2019. 2

[6] Ms Miller’s employer changed to YCC in about September 2019. Ms Miller explained this change as a rebranding exercise. I accept Ms Miller’s unchallenged evidence that she received her first payslip from YCC on about 24 September 2019.

[7] Ms Miller entered into a contract of employment with YCC dated 15 July 2021 in relation to her full-time position as a Disability Support Worker. 3

[8] On 13 August 2019, Ms Miller had a discussion with Ms Peluso, her husband, Mr Greg Wilson, and Ms Joanne Parkinson, Personal Assistant to Ms Peluso. 4 Ms Miller recalls discussing a range of matters in that meeting and taking away from the meeting that she should raise issues with Mr Wilson directly and she was required to exhibit a professional and courteous attitude at all times.

[9] YCC filed a document entitled “Letter of Concern” dated 14 August 2019 and addressed to Ms Miller. 5 It refers to the discussion on 13 August 2019 and Ms Miller being issued with a “verbal warning which forms part of the Company’s disciplinary process”. Ms Miller gave evidence that she did not receive this letter in August 2019 or at any other time prior to these proceedings. Ms Miller contends that the letter is a “fake”. It is not signed and is on Your Community Care letterhead. Ms Miller gave evidence that the business in which she worked did not trade as Your Community Care until September 2019, at which time she started to receive payslips from YCC. At all previous times Ms Miller says that the business in which she worked traded as Chisholm Community Healthcare. Ms Miller says that if the “Letter of Concern” had been sent to her in August 2019, it would have been on Chisholm Community Healthcare letterhead.

[10] In circumstances where there is no evidence as to how the “Letter of Concern” on YCC letterhead was allegedly sent to Ms Miller and Ms Miller gave unchallenged evidence that she did not receive it, I find, on the balance of probabilities, that Ms Miller did not receive the “Letter of Concern”.

[11] For over three years prior to her dismissal, Ms Miller spent most of her time as a Disability Support Worker providing support to a particular client of YCC. I will refer to that client as Ms A.

[12] In addition to performing her duties as a Disability Support Worker, Ms Miller had managerial responsibilities and her email messages described her title as Business Relations Manager (Coordinator for Support). 6 Similarly, a document filed by YCC described Ms Miller’s role in May 2021 as Business Relations Coordinator.7

[13] On 7 July 2022, Ms Peluso sent a text message to Ms Miller to inform her that YCC had given Ms A one week’s notice of YCC’s decision to terminate the provision of disability support services to Ms A. Ms Miller was upset by this decision because she was the main carer for Ms A and she knew that Ms A needed her support. Notwithstanding the termination of the contract with Ms A, Ms Miller was confident, as one of the longest serving staff members of YCC, that she would provide caring services to other clients and would continue her employment with YCC.

[14] On 8 July 2022, staff of YCC were informed that Ms Peluso and YCC’s Human Resources Manager would be out of the office until 15 and 14 July 2022 respectively.

[15] Ms Miller was concerned about who would be providing disability support services to Ms A during the one week notice period given by YCC. At that time YCC had first preference for the shifts that needed to be filled for Ms A, with a competitor company, Resolute Support, filling in the balance of the shifts required for Ms A.

[16] On 11 July 2022, Ms Miller asked Ms Laura Wade, Personal Assistant to Ms Peluso, if YCC were covering the day shift for Ms A on Thursday, 14 July 2022. Ms Wade said words to the effect that she was under the impression that YCC were not doing the Thursday shift for Ms A anymore, and Ms Peluso had sent an email to the client, the client’s “COS” and the other company [Resolute Support] stating the days and times that YCC were providing services that week and Thursday was not on the list. Ms Miller accepts that she is not now aware, and was not aware at the time of this conversation, whether Ms Peluso had sent such an email. Ms Miller believes that such an email may not have been sent because Ms A and an employee from Resolute Support to whom Ms Miller had been speaking about Ms A had not mentioned the email.

[17] I do not accept Ms Miller’s evidence that Ms Wade told her that Ms Peluso had deliberately left the Thursday shift blank for Ms A. Ms Miller’s evidence in that regard is inconsistent with Ms Wade’s comment to her that Ms Peluso had sent an email in which she informed relevant people that YCC was not providing services to Ms A on the Thursday.

[18] Ms Wade informed Ms Miller that she was not able to get a hold of the other company [Resolute Support], but she had sent an email to them.

[19] Ms Miller then made a conference call to Ms Wade and the rostering clerk from Resolute Support, Emma. A conversation in words to the following effect then took place:

Ms Miller said:

“Hi Emma, I have Laura on the line.”

Emma said:

“Yeah I’ve just received her email.”

Ms Wade said:

“Yes, hi Emma, as I said in my email, I am unable to fill the shift as I wasn’t aware it needed filling and due to having staff out with Covid and floods, I just don’t have anyone available. Are you able to cover it with your staff?”

Emma said:

“Look, I can try but we are in the same boat.”

Ms Wade said:

“Thanks, Emma. I’m really sorry for the inconvenience. It seems like every disability support provider is in the same boat with staff right now.”

[20] Ms Miller then thought that she had removed Ms Wade from the call, but she had not done so. Ms Wade remained on the call, which was on loudspeaker in YCC’s office and was overheard by Mr Ayden Wallace, YCC IT Support, and Ms Brianna Stothard. Both of these people provided a record of their account of the conversation that followed. 8 However, neither witness was called to give evidence at the hearing. As a result, neither witness was cross examined. I have therefore reduced the amount of weight that I am prepared to give to these records of the conversation.

[21] There is no dispute that Ms Miller then said to Emma: “I’ve just hung up on Laura”. Ms Miller says that she also said words to the effect: “She is really annoying me”. The notes made by Mr Wallace state that Ms Miller said: “Laura was giving her the shits”. The notes made by Ms Stothard state that Ms Miller said: “I just hung up on Laura because she is pissing me off”. I prefer the evidence given by Ms Miller in relation to this issue because, unlike Mr Wallace and Ms Stothard, Ms Miller gave oral evidence and I was able to ask her many questions about her recollection of this conversation. Ms Miller presented as a credible witness who was willing to give direct answers to the questions put to her and accept criticisms of her conduct in particular respects.

[22] Ms Miller accepts that she then said to Emma that YCC’s dealing with the matter was embarrassing and unprofessional, and she was embarrassed. Ms Miller accepts that she might also have said to Emma that the situation was ridiculous. I am satisfied on the balance of probabilities that Ms Miller did say the situation was ridiculous because she plainly believed it was ridiculous and Mr Wallace’s notes make numerous references to Ms Miller talking about how ridiculous the situation was. I accept Ms Miller’s evidence that she did not say it was a joke. Ms Miller also said that she was always checking on the rosters at YCC to make sure they were right. I accept Ms Miller’s evidence that she did not say that she was the only one who could do the rosters correctly.

[23] By letter dated 12 July 2022, YCC put allegations to Ms Miller in relation to the allegedly disparaging comments she made about management and YCC while speaking to an employee, Emma, from a competitor company, Resolute Support, on 11 July 2022. In that letter Ms Miller was requested to attend a disciplinary meeting to respond to the allegations, by Zoom, at 2:30pm on 14 July 2022.

[24] On 13 July 2022, I accept Ms Miller’s evidence that she felt unwell. At 9:18pm that night, she sent a text message to YCC to inform her employer that she would not be attending work the next day because she was unwell. Ms Miller also stated that she would be “on sick leave until further notice”.

[25] At 9:15am on 14 July 2022, Ms Miller sent a text message to YCC’s Human Resources Manager to inform him that she had a “Drs appointment today” and ask him to reschedule the proposed meeting. At 9:34am the Human Resources Manager replied to Ms Miller’s text message, informing her that “if you can’t attend for any reason, YCC reserves the right to make a determination in your absence”. 9 Ms Miller responded with the following text message at 9:39am:

“I’m fully entitled to sick leave. I have a Drs appointment and will provide a certificate, Due to not feeling well, I do not feel fit enough to undertake or participate in a meeting today. You need to respect that and reschedule please.”

[26] On 14 July 2022, Ms Miller attended her doctor and obtained a medical certificate for the period from 14 July 2022 to 29 July 2022. Ms Miller emailed that medical certificate to YCC at 7:38pm on 14 July 2022 and asked for the meeting to be rescheduled until she was fit and able to give a response. By reply email Ms Peluso stated:

“As per the letter sent to you today, there will not be a further meeting as we have dismissed you based on serious misconduct. Please return company property to Richard by close of business tomorrow.”

[27] A termination letter dated 14 July 2022 was sent to Ms Miller. It relevantly states:

“We refer to our letter concerning an allegation of serious misconduct dated 12/07/2022.

The allegation, together with our findings, are noted following:

i. It is alleged that on 11 July 2022 you engaged in inappropriate behaviour and made disparaging comments about management and the Company when speaking on the phone. Specifically, you were speaking with Laura Wade and Emma from Resolute regarding a shift needing to be filled for a client named [Ms A]. You thought that you had hung up on Laura and was just speaking to Emma and ii is alleged you made the following comments:

• I've just hung up on Laura, she' s giving me the shits;

• Oh, it is absolutely ridiculous, this is just a joke. YCC is just so embarrassing;

• Oh, I get it mate, this is why I always end up doing the rosters: because I am the only one who can do it right.

This was overheard by two other colleagues as the call was on loudspeaker.

Such conduct is considered serious misconduct under the Fair Work Regulations and has the potential to cause a serious and imminent risk to the reputation, viability or profitability of the employer's business Such conduct also has the potential to impact on harmonious relationships and morale in the workplace.

After investigation into these allegations which the Company has substantiated, in the circumstances, and for the reasons as outlined above, we maintain the view that it is appropriate that your employment should be terminated with immediate effect and without notice.”

[28] On 28 July 2022, Ms Miller obtained a further medical certificate in respect of the period from 28 July 2022 to 4 August 2022.

Initial matters to be considered before merits

[29] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the application

[30] I am satisfied on the evidence that:

(a) Ms Miller’s unfair dismissal application was made within the period required in s 394(2) of the Fair Work Act 2009 (Cth) (Act);

(b) Ms Miller is a person protected from unfair dismissal;

(c) the Small Business Fair Dismissal Code did not apply to Ms Miller because YCC was not a small business at the time it dismissed Ms Miller; 10 and

(d) Ms Miller’s dismissal was not a case of genuine redundancy within the meaning of the Act.

Harsh, Unjust or Unreasonable

[31] I must take into account, in determining whether Ms Miller’s dismissal was harsh, unjust or unreasonable, the matters set out in s 387 of the Act.

Section 387(a) – valid reason related to capacity or conduct

[32] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 11 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”12 and should not be “capricious, fanciful, spiteful or prejudiced.”13

[33] 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. 14 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).¹⁵
(a) Capacity is the employee’s ability to do the job as required by the employer. 16 Capacity also includes the employee’s ability to do the work they were employed to do.17

[34] The appropriate test for capacity is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively. 18

[35] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 19 The Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred or the performance was satisfactory.²⁰

[36] In cases involving alleged misconduct, a reason for dismissal would be valid if conduct occurred and it justified termination. There would not be a valid reason for termination if the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour). 21

[37] Ms Miller accepted in her evidence that she was critical of YCC in her communications with Emma from Resolute Support on 11 July 2022. That concession was appropriate in circumstances where there is no doubt that Ms Miller described her employer and its approach to the rostering of shifts to care for Ms A as embarrassing, unprofessional and ridiculous. Ms Miller’s conduct in that regard was in breach of her contractual obligations to act in YCC’s best interests at all times, exhibit a professional and courteous attitude, and not make any statement which was reasonably likely to damage the reputation or cause other damage to YCC. 22

[38] It is clear that Ms Miller felt justified in criticising YCC in her discussions with an employee from Resolute Support because she was upset and frustrated at the approach she believed YCC was taking to providing services to Ms A during the one week notice period. Whether or not there was merit in Ms Miller’s concerns, she should have addressed those concerns internally within YCC. By openly criticising YCC to a competitor company, Ms Miller contravened the contractual promises she made when she entered into her employment contract with YCC. Further, Ms Miller should have collected all the relevant facts before concluding that YCC had acted inappropriately. For example, if Ms Peluso had, as stated by Ms Wade, sent an email to Ms A and other relevant people stating the days and times that YCC were providing services that week and Thursday was not on the list, then it would be wrong and inappropriate to be critical of YCC for not organising an employee of YCC to provide care services to Ms A on the Thursday. It follows, in my view, that YCC had a sound, defensible and well-founded reason to terminate Ms Miller’s employment.

[39] That there was a valid reason for Ms Miller’s dismissal weighs against Ms Miller’s argument that she was unfairly dismissed.

Section 387(b) – notification of reason

[40] There is no dispute that YCC notified Ms Miller of the reason for her dismissal in its termination letter dated 14 July 2022. That reason was also communicated to Ms Miller in the letter of allegations sent to Ms Miller on 12 July 2022. The fact that Ms Miller was notified of the reason for her dismissal weighs against Ms Miller’s argument that she was unfairly dismissed.

Section 387(c) – opportunity to respond

[41] YCC did not give Ms Miller an opportunity to respond to the reason for her dismissal. I accept Ms Miller’s oral evidence that she was very unwell on 14 July 2022 and could not participate in the Zoom meeting scheduled for that day. Ms Miller’s evidence in that regard is supported by a medical certificate dated 14 July 2022 and her contemporaneous communications to YCC. 23

[42] YCC’s refusal to reschedule the meeting to a time when Ms Miller was well enough to participate in it meant that she had no real opportunity to respond to the allegations put to her in writing on 12 July 2022.

[43] The fact that Ms Miller was not given an opportunity to respond weighs in favour of her argument that she was unfairly dismissed.

Section 387(d) – support person

[44] YCC did not unreasonably refuse to allow Ms Miller to have a support person present to assist at any discussions relating to her dismissal. Accordingly, s 387(d) is a neutral factor in relation to the question of whether Ms Miller’s dismissal was harsh, unjust or unreasonable.

Section 387(e) – warning about unsatisfactory performance

[45] Ms Miller’s dismissal did not relate to any unsatisfactory performance by her. It follows that s 387(e) is a neutral factor in relation to the question of whether Ms Miller’s dismissal was harsh, unjust or unreasonable.

Section 387(f)&(g) – size of enterprise and dedicated human resource management specialists

[46] At the time of Ms Miller’s dismissal, although YCC was a fairly small employer, it had a human resources manager. In all the circumstances, I am of the view that these factors (s 387(f) & (g)) are neutral in my assessment as to whether Ms Miller’s dismissal was harsh, unjust or unreasonable.

Section 387(h) – other relevant matters

[47] Ms Miller was one of the longest serving employees of YCC. 24 I am satisfied on the evidence that Ms Miller excelled in her duties as a Disability Support Worker, but there were some concerns in relation to her managerial duties and, in August 2019, ensuring that she maintained a professional and courteous attitude at all times.25 On balance, I am satisfied that the length and quality of Ms Miller’s service with YCC weighs in support of her argument that she was unfairly dismissed.

[48] Ms Miller was summarily dismissed by YCC on grounds of serious misconduct. The proportionality of the summary nature of Ms Miller’s dismissal must be weighed against the gravity of her misconduct in respect of which YCC acted in deciding to dismiss her.⁵⁵  

[49] In Sharp v BCS Infrastructure Support Pty Ltd,⁵⁶ a Full Bench of the Commission discussed the question of whether particular conduct by an employee warranted their summary dismissal as an “other relevant matter” within the meaning of s 387(h) of the Act (references omitted): 

“[33] The relevance of the definition of “serious misconduct” in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of “serious misconduct” for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression “serious misconduct” is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression “serious misconduct” is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is “satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person”. However, it is clear that conduct may constitute “misconduct” for the purpose of s.392(3) without necessarily being “serious misconduct”. The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case. 

[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee’s conduct met a postulated standard of “serious misconduct”. In Rankin v Marine Power International Pty Ltd  Gillard J stated that “There is no rule of law that defines the degree of misconduct which would justify dismissal without notice” and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. “Serious misconduct” is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said: 

“[48] The terms ‘misconduct’, ‘serious misconduct’ and ‘serious and wilful misconduct’ are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term ‘serious misconduct’ is under consideration an evaluation of what conduct represents ‘serious’ misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2).” 

[35] In the Decision, the Vice President, correctly, did not attempt to address the parties’ submission concerning “serious misconduct” in the context of his consideration of whether there was a valid reason for the dismissal, but only as a relevant matter under s.387(h). His findings at paragraph [55] and [56] that Mr Sharp’s conduct was “serious misconduct” was, we consider, responsive to the submission of BCS noted in the first sentence of paragraph [52] that “the Applicant’s conduct constituted serious misconduct justifying immediate dismissal”. That is, “serious misconduct” was used as a shorthand expression to described misconduct of a nature that justified summary dismissal. A finding of that nature was a matter which was open to be taken into account as relevant under s.387(h) because it involved an assessment of the seriousness of the conduct in question.” 

[50] Although Ms Miller breached her contractual obligations by making comments critical of YCC in her discussions with the Rostering Clerk of Resolute Support, those comments were made on a single occasion to one employee of Resolute Support, not the public at large or a significant portion of it. Further, true it is that Resolute Support was a competitor of YCC, but the two organisations worked co-operatively together in providing the extensive disability support services required by Ms A. Of additional relevance is the fact that the comments were made during the one week notice period given by YCC to Ms A. It follows that Ms Miller’s conduct did not give rise to a risk of ‘losing’ Ms A as a long-term client of YCC. I do not accept YCC’s contention in its letter of termination to Ms Miller that her conduct had the potential to cause a serious and imminent risk to the reputation, viability or profitability of YCC’s business, or that it had the potential to impact in any significant way on harmonious relationships and morale in the workplace. In my assessment, Ms Miller’s conduct on 11 July 2022 was not of such a grave nature as to be repugnant to the employment relationship. Ms Miller’s conduct did not warrant her summary dismissal.

[51] The fact that Ms Miller was dismissed at a time when YCC had been informed that she was sick, could not attend the meeting on 14 July 2022 and would provide a medical certificate after seeing her doctor on that day are relevant matters. Having been informed that Ms Miller was attending a doctor’s appointment on 14 July 2022 and there being no evidence to support a finding that Ms Miller’s illness was not genuine, it was unfair for YCC to refuse to delay the meeting with Ms Miller until she was well enough to participate in it. As a consequence, Ms Miller was not afforded the opportunity to respond to the allegations and provide her side of the story. These procedural deficiencies in the process followed by YCC weigh in support of Ms Miller’s contention that her dismissal was unfair.

Conclusion on harsh, unjust or unreasonable dismissal

[52] After considering each of the matters specified in s 387 of the Act, my evaluative assessment is that YCC’s dismissal of Ms Miller was harsh and unreasonable. There was a valid reason for the dismissal and Ms Miller was notified of the reason for her dismissal, but she was dismissed when she was genuinely ill and unable to attend a meeting to give her response to the allegations made against her. In addition, Ms Miller was summarily dismissed in circumstances where her conduct did not warrant the summary termination of her employment.

Remedy

[53] Having found that Ms Miller was protected from unfair dismissal, and that her dismissal was harsh and unreasonable, it is necessary to consider what, if any, remedy should be granted to her. Ms Miller does not wish to be reinstated to employment with YCC. In any event, I am satisfied that it would be inappropriate to reinstate Ms Miller in all the circumstances, particularly in light of the fact that YCC has ceased trading.

[54] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. 26

[55] Having regard to all the circumstances of the case, including the fact that Ms Miller has suffered financial loss as a result of her unfair dismissal, I consider that an order for payment of compensation to her is appropriate.

[56] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Ms Miller. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.

[57] I will use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket 27 and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases.28 The approach to calculating compensation in accordance with these authorities 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.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount she or she would have received if they had continued in their employment.

Step 5: Apply the legislative cap on compensation.

Remuneration Ms Miller would have received, or would have been likely to receive, if she had not been dismissed (s 392(2)(c))

[58] Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed. 29

[59] I am satisfied on the balance of probabilities that if Ms Miller had not been unfairly dismissed on 14 July 2022, she would have continued in employment with YCC until 5 August 2022, at which time she was well enough to participate in a meeting and respond to the allegations made against her. In my assessment, it is more likely than not that YCC would have made the decision to terminate Ms Miller’s employment after hearing her response to the allegations. That is primarily because there is no dispute that Ms Miller made critical comments of YCC in her discussions with the Rostering Clerk of YCC. I consider that YCC would, acting reasonably, have given Ms Miller four weeks’ notice of the termination of her employment in accordance with clauses 27.2 and 27.3 of her contract of employment. 30 I make this finding notwithstanding Ms Miller’s contention that she would have remained in employment with YCC for a long time. The available evidence points to a different conclusion. In the result, my assessment is that Ms Miller would have remained in employment with YCC until 2 September 2022, being four weeks after 5 August 2022, if she had not been dismissed on 14 July 2022.

[60] Ms Miller was certified by her doctor as being unfit for work from 14 July 2022 to 4 August 2022 inclusive. I am satisfied on the balance of probabilities that if Ms Miller had not been dismissed on 14 July 2022 she would have remained in employment and been paid sick leave from 15 July 2022 until 4 August 2022 at the rate of $1,141.14 gross per week (38 hours x $30.03 = $1,141.14), amounting to a total payment of $3,423.42 (3 weeks x $1,141.14/week = $3,423.42). In relation to the four week period from 5 August 2022 to 2 September 2022, I am satisfied on the balance of probabilities that if Ms Miller had not been dismissed on 14 July 2022 she would have remained in employment and been paid at the rate of $1,206.07 gross per week. That is the average rate of pay Ms Miller received in the period from 27 June 2022 to 10 July 2022. Ms Miller gave evidence that her remuneration in that fortnight was typical of the hours she ordinarily worked for YCC. Notwithstanding the loss of Ms A as a client, Ms Miller gave evidence, which I accept, that YCC had other clients which would have kept her busy had she not been dismissed. I find on the balance of probabilities that Ms Miller would have continued to about the same hours and be paid at the same weekly rate during her notice period, giving her a payment of $4,824.28 (4 x $1,206.07 = $4,824.28).

[61] Accordingly, I am satisfied that $8,247.70 is the remuneration that Ms Miller would have received, or would have been likely to receive, if she had not been dismissed ($3,423.42 + $4,824.28 = $8,247.70).

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

[62] I accept Ms Miller’s evidence that commenced a new full-time job with Resolute Support on 29 August 2022, earning more remuneration than she did with YCC. I also accept Ms Miller’s evidence that she undertook the following ‘private’ disability support work in the period from 15 July 2022 to 28 August 2022 and was paid a total sum of $3,560 as follows:

(a) on 22 August 2022, Ms Miller undertook seven hours work and was paid $420;

(b) on 23 August 2022, Ms Miller undertook emergency care work during a 24 hour period and was paid $1,520;

(c) on 25 August 2022, Ms Miller undertook 10 hours work and was paid $600;

(d) on 26 August 2022, Ms Miller undertook 11 hours work and was paid $660; and

(e) on 27 August 2022, Ms Miller undertook six hours work and was paid $360.

[63] Ms Miller did not suffer any loss in the period from 29 August 2022 to 2 September 2022 because during that period she was employed by Resolute Support at a higher rate of pay than she received when she was employed by YCC. Accordingly, the period of loss to consider for Ms Miller is from 15 July 2022 until 28 August 2022. During that period, if Ms Miller was employed by YCC, she would have been paid $7,558.52 ($3,423.42 for the sick leave period from 15 July 2022 until 4 August 2022 and $4,135.10 for the period of three weeks and three days from 5 August 2022 until 28 August 2022(3 and 3/7 x $1,206.07 = $4,135.10)). Ms Miller earned $3,560 from her alternate employment in that period. It follows that the loss Ms Miller has suffered by reason of her unfair dismissal in the period from 15 July 2022 until 28 August 2022 is $3,998.52 ($7,558.52 - $3,560 = $3,998.52). This calculation is intended to put Ms Miller in the position she would have been in but for the termination of her employment. 31

Viability (s 392(2)(a))

[64] No submission was made on behalf of YCC that any particular amount of compensation would affect the viability of YCC’s enterprise.

[65] My view is that no adjustment will be made on this account.

Length of service (s 392(2)(b))

[66] My view is that Ms Miller’s period of service with YCC (about 3.5 years) does not justify any adjustment to the amount of compensation.

Mitigation efforts (s 392(2)(d))

[67] The evidence establishes that Ms Miller made reasonable efforts to obtain alternative employment following her dismissal. In particular, she undertook ‘private’ disability support work before finding full-time employment with Resolute Support on 29 August 2022.

[68] In all the circumstances, my view is that Ms Miller acted reasonably to mitigate the loss suffered by her because of the dismissal and I do not consider it appropriate to reduce the compensation on this account.

Any other relevant matter (s 392(2)(g))

[69] It is necessary to consider whether to discount the remaining amount ($3,998.52) for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which Ms Miller was subject might have brought about some change in earning capacity or earnings. 32 Positive considerations which might have resulted in advancement and increased earnings are also taken into account.

[70] 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. 33

[71] Because I am looking in this matter at an anticipated period of employment which has already passed (15 July 2022 to 2 September 2022), there is no uncertainty about Ms Miller’s earnings, capacity or any other matters during that period of time.

[72] In all the circumstances, my view is that it is not appropriate to discount or increase the figure of $3,998.52 for contingencies.

[73] Save for the matters referred to in this decision, my view is that there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s 392(1) of the Act.

[74] I have considered the impact of taxation, but my view is that I prefer to determine compensation as a gross amount and leave taxation for determination.

Misconduct (s 392(3))

[75] Ms Miller engaged in misconduct by making comments critical of her employer to a competitor company. That misconduct contributed to YCC’s decision to dismiss Ms Miller. In light of my assessment of the gravity of Ms Miller’s conduct and the limited period during which I have assessed that Ms Miller would have remained in employment had she not been dismissed on 14 July 2022, I consider that it is appropriate in all the circumstances of this case to reduce the amount of compensation under s 392(3) of the Act by $500, giving a reduced figure of $3,498.52 ($3,998.52 - $500 = $3,498.52).

Shock, distress or humiliation, or other analogous hurt (s 392(4))

[76] I note that in accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap (s 392(5)-(6))

[77] The amount of $3,498.52 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 Ms Miller was entitled in her employment with YCC during the 26 weeks immediately before her dismissal. In those circumstances, my view is that there is no basis to reduce the amount of $3,498.52 by reason of s 392(5) of the Act.

Instalments (s 393)

[78] No application has been made to date by YCC for any amount of compensation awarded to be paid in the form of instalments.

Conclusion on compensation

[79] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, my view is that there is no basis for me to reassess the assumptions made in reaching the amount of $3,498.52. 34

[80] For the reasons I have given, my view is that a remedy of compensation in the sum of $3,498.52 (less taxation as required by law) in favour of Ms Miller is appropriate in the circumstances of this case. An order will be made to that effect.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR748182>

Appearances:

Ms V Miller, for the Applicant

Hearing details:

2022.

Newcastle

16 November (by Microsoft Teams videoconference).

 1   Ex 1 – Court Book at pp 65 - 128

 2   Ex 1 – Court Book at p 100

 3   Ex 1 – Court Book at pp 71-82

 4   Ex 1 – Court Book at pp 119-122

 5   Ex 1 – Court Book at p 124

 6   Ex 1 – Court Book at p 59

 7   Ex 1 – Court Book at p 109

 8   Ex 1 – Court Book at pp112-113

 9   Ex 1 – Court Book at p 56

 10   Ex 1 – Court Book at p 68

 11   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

 12   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 13   Ibid

 14   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

15 Ibid

 16   Ibid at 684

 17   Webb v RMIT University [2011] FWAFB 8336 (Drake SDP, Hamilton DP, Jones C, 8 December 2011) at [6]

 18   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 at [62]

 19   Ibid

20 King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24]

 21   Sydney Trains v Hilder [2020] FWCFB 1373 at [26(3)]

 22   Ex 1 – Court Book at pp 73 & 77

 23   Ex 1 – Court Book at pp 56-62

 24   Ex 1 – Court Book at p 51 [28]

 25   Ex 1 – Court Book at pp 125-126

 26   Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]

 27   (1998) 88 IR 21

 28   Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431

 29   Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]-[17]

 30   Ex 1 – Court Book at p 79

 31   Bowden at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35]

 32   Ellawala v Australian Postal Corporation Print S5109 at [36]

 33   Enhance Systems Pty Ltd v Cox PR910779 at [39]

 34   Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32]