FWA 4179
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
FC Pty Ltd
ADELAIDE, 16 JUNE 2010
Application for unfair dismissal remedy - casual employee with regular engagements - alleged performance and attitude concerns - bullying allegations made by applicant - dismissed during the course of a telephone discussion - whether dismissal harsh, unjust or unreasonable - whether valid reason - whether adequate warnings and genuine opportunity to respond provided - substantive and procedural deficiencies - whether affected the fairness of the dismissal - dismissal unfair - remedy - whether compensation appropriate.
Background and case outline
 Ms SB (the applicant) has made an application to Fair Work Australia claiming that her dismissal on 12 February 2010 by FC Pty Ltd (the respondent or the employer) was unfair.
 The matter was, at the request of the respondent, not subject to conciliation and has been assigned to me to determine the application under the relevant provisions of the Fair Work Act 2009 (the Act).
 As this matter involves contested facts, I was required by s.397 of the Act to either conduct a conference or a hearing. After consultation with the parties as contemplated by s.398 of the Act, I determined that this matter would be subject to a determinative conference. Given the confidential nature of the conference as specified in the Act I have not directly identified the parties or the witnesses in this decision. 1
 Mr Blairs from the Shop Distributive and Allied Employees Association (the SDA) represented the applicant and Mr AD, the employer’s Managing Director, represented the respondent.
 Many of the general facts and context in this matter are not in dispute. The applicant was engaged as a casual employee in the respondent’s cafe and light dining business having worked regularly since her employment commenced in October 2008. She was dismissed during the course of a telephone conversation with Mr AD on 12 February 2010.
 What is not agreed is the precise basis for the dismissal and whether it was harsh, unjust or unreasonable within the meaning of the Act.
 The applicant contends that she was apparently dismissed because of what the employer described as a personal issue with another staff member but that other factors, including the making of bullying complaints by the applicant and her absence due to personal illness, may also have been wrongly taken into account by the employer. In any event, there was no valid reason for dismissal according to the applicant.
 The applicant also argues that she was not informed of the reasons for her dismissal, was not given an opportunity to respond to any reasons related to her capacity or conduct and was not given the opportunity to have a support person involved in any part of the events leading to her dismissal.
 To the extent that performance matters were relied upon by the respondent, the applicant contends that she was not sufficiently warned by the employer or given any reasonable opportunity to improve her performance.
 The applicant argued that as a result, the dismissal was harsh, unjust and unreasonable and given the circumstances of her departure from the workplace, compensation was sought.
 The respondent contends that the applicant was dismissed due to poor work performance and in particular her alleged general poor attitude and failure to work to her potential. Further, the applicant’s actions following a counselling session conducted on 10 February 2010 by her Store Supervisor and Area Manager were said to be an indication that her performance and attitude would not improve.
 The respondent also argued that the applicant was provided with ample opportunity, during the telephone conversation on 12 February 2010, to demonstrate that her work ethic would improve and that she was aware that work performance was the reason for her dismissal. Further, it was contended that the applicant’s bullying allegations were fully investigated and found not to be justified. Finally, the employer noted the fact that the applicant gained new employment within a short period after her dismissal.
 In that light, the respondent contended that the applicant’s position in relation to her dismissal was incorrect and unfounded.
 The evidence before Fair Work Australia comprises witness statements and sworn evidence from the following:
 In addition, there is some limited documentary evidence concerning the applicant’s post dismissal earnings.
 The applicant and Mr AD were sworn in at the commencement of the determinative conference and gave evidence throughout the conference as appropriate. Ms JD and Ms KC joined the conference only to give their evidence. In assessing this matter, I have noted the approach of the witnesses to each other and also had regard to the consistency of their evidence and their demeanour when giving evidence.
The facts of the matter
 I have drawn the facts of this matter from the evidence provided by both parties. I generally accept the evidence of the applicant on those matters that she directly knew or observed including in relation to the key events leading to her dismissal. However, I find that her evidence regarding the alleged bullying to be indicative of her genuine views but also somewhat exaggerated. In terms of Mr AD and Ms JD, they are both strong personalities who gave their evidence in a frank manner. I found their evidence regarding the facts of the matter to be reliable, albeit with reservations about some of the opinions embedded in that evidence as these are ultimately matters for Fair Work Australia to determine. I found the evidence of Ms KC to be somewhat subjective although she did not in my view attempt to mislead the Tribunal.
 The respondent conducts a café and light dining retail business and employs some 30 staff in its various Adelaide stores. The respondent has also franchised some of the stores operating under its banner.
 The applicant is 19 years of age and I find her to be an intelligent and articulate young woman but somewhat naive and very uncomfortable with conflict.
 The applicant commenced employment with the respondent as a food and beverage attendant in or around October 2008. Although paid as a casual employee, the applicant regularly worked an average in excess of 35 hours per week and was regularly working over 40 hours per week at the time of her dismissal.
 The applicant was initially working at the Frome St store conducted by the respondent and did so for a period of approximately six months. The applicant then moved to the Waymouth St store, as well as undertaking relief work at other stores from time to time. In that context the applicant also worked at some stage with Ms KC as her supervisor.
 I find that there were some exchanges between Ms KC and the applicant at that time that were not particularly professional or appropriate in the circumstances. These include a threat, which I find was not taken literally at the time, that “if you don’t clean the grease trap properly, I’ll (Ms KC) stick your head in it”. I add that Ms KC may also have referred to the applicant as a “Bogan” in front of other staff during later events. Given the personalities and roles of these employees in the workplace, these exchanges have played a role in the subsequent events. I will return to these aspects in due course.
 The respondent generally considered the applicant’s work performance to have been good, however in late 2009 and early 2010, Ms JD and Mr AD assessed that the applicant’s work performance had declined.
 The applicant was moved to the King William St store in early 2010. This was done principally due to the need to fill a staff vacancy however the respondent was concerned about her work performance and advised Ms KC, who was to be her supervisor at the King William St store, to ensure that her work was closely monitored.
 The applicant had some misgivings about the move to the King William St store and questioned the basis of the move with her then supervisor. The applicant did not however raise her misgivings about Ms KC with anyone at that time.
 In the weeks leading up to the events of 10 February 2010, Ms KC and Ms JD observed that the applicant did not appear to be happy in her work and was spending too much time talking in the kitchen rather than servicing the front of house responsibilities. In that context, the applicant was encouraged on a number of occasions to concentrate on her work and to ensure that her demeanour with customers was appropriate.
 After discussing the issues with Mr AD, Ms JD decided that the applicant should be spoken to about her performance. Immediately before a scheduled lunch break on 10 February 2010, the applicant was requested to have an informal discussion with Ms JD and Ms KC. The applicant was not advised of the purpose of the meeting nor given the opportunity to have a support person present.
 During the course of the 10 February meeting, Ms JD and Ms KC raised their concerns with the applicant’s work performance and although she did not necessarily agree that such concerns were well founded, the applicant did acknowledge their perspective. The applicant indicated that she would try her best and when requested to confirm her attitude to work, indicated “yes, I like my job”. The meeting took something like five minutes and concluded on the basis that the applicant was given a week to improve her performance, and if there was no improvement, a (formal) warning notice would be issued.
 I interpose that the respondent had no apparent intention to dismiss the applicant at this point, but rather move to a formal disciplinary process in the event that a sustained improvement in performance was not evident.
 The applicant was distressed about the meeting and during her lunch break telephoned her mother. The applicant’s mother then attended at the Waymouth St store (where the applicant was previously located) and informed the Store Manager that her daughter was being seriously bullied and made a number of allegations against Ms KC in that context. This was apparently done in a disruptive and public manner. I interpose that the applicant did not request her mother to intervene on her behalf and was very embarrassed by her actions.
 Mr AD became very annoyed upon hearing of the applicant’s mother’s allegations and determined that he and Ms JD would speak with the applicant. This occurred at around 3.00pm on 10 February 2010 at the King William St store.
 The applicant was invited to immediately meet with Mr AD and Ms JD and was not given the opportunity to consider having a support person attend. I will return to the significance of this element in due course.
 Mr AD advised the applicant of her mother’s conduct and the applicant indicated that she was unaware of, and annoyed at, that turn of events. Mr AD then raised the applicant’s work performance as discussed earlier in the day and the applicant indicated that she was working as hard as she could. Ms JD did not accept that response and the applicant became visibly upset and attempted to avoid eye contact.
 Mr AD then raised the alleged bullying issues with the applicant. The applicant informed the employer that Ms KC had “threatened to kill” her, had called her names and was “always picking on (her)”. Mr AD then informed the applicant that as an adult, she should not run to her mother and should have raised any concerns with Ms KC or himself. Mr AD also indicated that he takes bullying seriously and would follow up with Ms KC. Ms JD indicated that she was often in the same workplace and given that the applicant had not approached her, did not consider that bullying was going on.
 The applicant was not comfortable to raise these matters earlier with the employer and felt intimidated in this meeting. When her recent demeanour was raised by Ms JD, the applicant indicated her concerns about having “someone nipping at your heals every five minutes and telling you that you are not doing your job”. Ms JD indicated that Ms KC was only doing her job and that the applicant could go home that night and decide whether she wanted to continue to keep working for the employer and let them know the next day.
 Mr AD and Ms JD then spoke to Ms KC about the alleged bullying. Based upon their experience with Ms KC, who had been employed by the respondent for some 10 years, they concluded that there was no substance to those allegations and that any earlier incidents were simply light-hearted comments now taken out of context. In fact, it is clear to me that Mr AD considered that all of the bullying allegations were either made up (in the case of the alleged threats) or mistaken (in the case of the performance monitoring and management). This “investigation” was very cursory and in my view did not genuinely consider the nature of the workplace relationships and the impact of the earlier conduct upon the performance management being undertaken.
 The applicant returned to her role in the kitchen and continued to be demonstrably upset. Ms KC approached the applicant in the kitchen and apologised if any comments made as a joke had caused offence. The applicant was uncomfortable about the situation but acknowledged the apology and indicated that she was fine. The applicant was however clearly still upset and when later approached by Ms JD, eventually agreed to go home. The respondent paid the applicant for the balance of her scheduled shift.
 Having consulted with an officer from the SDA about her treatment and state of distress, the applicant accepted that if she felt unable to attend work on Thursday 11 February, it would be wise to consult a doctor.
 On 11 February 2010, the applicant advised Ms JD via a text message that she would not be coming into work and would be seeing a doctor. Ms JD replied that this was fine. Later that day, the applicant consulted Dr Nguyen and was prescribed with medication (Valpam – which I understand is a treatment for anxiety conditions) and given a medical certificate for 11 and 12 February 2010 inclusive.
 On the morning of 12 February 2010, the applicant again sent a text message to Ms JD indicating that she would not be in that morning. Ms JD replied requesting details of what was wrong. The applicant informed Ms JD by return text that “my doctor has put me off of work because of stress”.
 As a casual employee, the applicant was not entitled to paid sick leave however she was expected to inform the employer of any intended absence. Although there was apparently no formal policy on such matters, the use of text messaging to inform of absence from work was generally acceptable. Ms JD did however expect that the applicant would have spoken to her on the second day however this expectation was not communicated to the applicant at any time.
 Ms JD advised Mr AD of these developments and he then decided to take the matter up directly with the applicant.
 Mr AD rang the applicant at home at around 11.30am. The course of that conversion is not in dispute and went as follows: 2
“MR AD Hi S (the applicant) how are you?
S Ahh yeah ok.
MR AD Just wanted to talk about how you’re feeling. Ms JD (Area Manager) said you were off due to stress, now obviously after the other day you’re not feeling too good. Is that right?
S Yeah I just honestly felt that I just couldn’t face coming into work my doctor’s actually put me on Vallium. I’ve never been this stressed or nervous in my entire life.
Mr AD Well I can’t understand what it is that has made you feel this way. I don’t feel we’ve done anything toward you in an unprofessional way and if you don’t like working for the (respondent), I don’t know what else we can do for you. I mean I want to be sympathetic but I just don’t see your attitude changing by Monday.
S Well you see I don’t have a problem working for you, four weeks ago I loved my job.
Mr AD And what’s changed?
S My environment, the shop I work in.
Mr AD Well I don’t see that changing, that’s the position we need you in and if you’re not happy there because of a personal issue you have with some of the staff there then we will have to go separate ways.
You still there?
Mr AD I’m sorry it has to be this way.
S If that’s the way you feel.
Mr AD Take care.”
 The applicant did not receive written confirmation of the dismissal and given the casual employment, was not given any payment in lieu of notice. I will leave the other post dismissal events until my later consideration of any remedy.
Was the dismissal of the applicant harsh, unjust or unreasonable?
 Section 385 of the Act provides as follows:
(1) A person has been unfairly dismissed if FWA 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.”
 It is common ground that the applicant was dismissed by the respondent on 12 February 2010. The respondent is not a small business within the meaning of the Act and this is not a matter involving a redundancy.
 The Act also relevantly provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
 I have earlier set out the general contentions of the parties and although I have considered the detailed submissions made by the parties, I will not repeat them for present purposes.
 It is clear that s.387 of the Act contemplates that an overall assessment as to the nature of the dismissal must be made by FWA. In so doing, the Act sets out a number of considerations that must, where relevant, be weighed up in totality. 3
 It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.
Section 387(a) – whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).
 Valid in this context is often considered to be whether there was a sound, defensible or well founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly. 4 In a case such as this, consideration of the conduct as the Tribunal finds it to be must be made.
 The reason for dismissal cited by Mr AD on behalf of the employer was confirmed during the conference in response to my question on the issue in the following terms:
“Well, SB was not doing her job in the manner that we required of her, to start off with. Following our conversation on the afternoon and following the conversation where we approached her about the bullying and the fact that she took time off for stress leave and the phone conversation, I just felt that her head was not in a space to be employed at FC Pty Ltd any further. I don't think her work attributes were of a high level. I don't think her accusations were – I don't believe the accusations she made towards Ms KC because they weren't made at an earlier date. I just felt as a casual employee, it was probably the right time for SB and FC Pty Ltd to part ways.” 5
 In considering the existence of a valid reason for dismissal, Fair Work Australia is not limited to the reasons stated by the employer but must itself determine the reasons for that decision based upon evidence. It is also the case, that the consideration of circumstances that could provide a valid reason is in the same way, not limited to the cited reasons. 6
 It is clear to me that in addition to the performance and attitude concerns, the making of the bullying allegations and the fact that the applicant took time off in the aftermath of the events of 10 February 2010 were also significant factors for the employer in making the decision to dismiss the applicant.
 This is not an unlawful termination matter and I do not need to consider whether this latter aspect would be a breach of the Act. However, what is clear is that to the extent that this factor was relied upon by Mr AD it was inappropriate and not a valid reason for dismissal.
 I do accept that there were performance concerns held by the respondent. These related to the tendency of the applicant to talk to others in the kitchen rather than clear tables. There were also some issues associated with her demeanour from time to time. These are sound reasons to institute disciplinary action as originally contemplated by the respondent on 10 February 2010. They were not however sufficient to justify dismissal without appropriate warnings and an opportunity to improve, which was also implicit in the decision of the employer to warn of a move to more formal disciplinary action at that time.
 The bullying allegations must also be carefully considered. I accept that the actions of Ms KC in following up on the employer’s performance concerns were not by themselves inappropriate or tantamount to bullying. I have also found that the earlier exchanges between the applicant and Ms KC were not appropriate but that their seriousness was subsequently exaggerated to a degree by the applicant. They did however set some of the context leading to the applicant’s negative perspectives about the performance management being undertaken by Ms KC and this factor was not genuinely considered by the respondent.
 In the end, there were legitimate concerns about the applicant’s work performance and a need to improve such. There were also going to be challenges in terms of the relationship between the applicant and Ms KC, however the view apparently taken by the respondent that her unhappiness in the circumstances then evident was an indication that the applicant would not improve her performance and attitude, was premature and unsound.
 The rather dismissive approach taken to the bullying allegations and the applicant’s apparent medical status at the time, are also relevant here.
 In all of the circumstances a valid reason for the applicant’s dismissal did not exist.
Section 387(b) – whether the applicant was notified of the reasons for dismissal.
 The applicant was not notified of the reasons for her dismissal at any time. The applicant was aware of concerns about her work performance however the actual basis of the dismissal was not articulated at the time. The reference to a “personal issue with some of the staff” as made by Mr AD during the dismissal discussion, does not adequately or accurately outline the reasons for the dismissal, and this also has an impact on some of the other considerations raised by s.387 of the Act.
Section 387(c) – whether the applicant was given an opportunity to respond to any reason related to her capacity or conduct.
 An opportunity to respond in this context includes where relevant, the opportunity to provide a perspective on the allegations. Further, where the matters related to overall job performance and attitude, rather than misconduct, an opportunity to demonstrate improvement would normally be expected.
 In this case, the applicant was not afforded any reasonable opportunity to demonstrate improvement in performance. The unfortunate intervention of the applicant’s mother and the aftermath of the further meeting on 10 February 2010, effectively prevented any opportunity before the dismissal decision was made.
Section 387(d) – any unreasonable refusal by the respondent to allow the applicant to have a support person present to assist in any discussions relating to her dismissal.
 The applicant was not afforded the opportunity to consider having a support person present in any of the discussions ultimately leading to her dismissal. This is perhaps not significant in terms of the first discussion on 10 February 2010. That discussion was intended to be a “warning” about the prospect of some formal disciplinary process (in the event of non-improvement) rather than a formal warning in its own right.
 Given the circumstances, the second discussion on 10 February 2010 and the discussions leading to her dismissal on 12 February 2010, were serious discussions with a young and clearly upset employee where it would have been desirable for a support person to be present to assist.
 However, this particular statutory consideration relates to a refusal to permit the applicant to have such assistance. 7 The applicant apparently did not seek that opportunity, which again is understandable given the way in which the discussions eventuated, but there was not as such a refusal by the employer.
Section 387(e) – if the dismissal is related to unsatisfactory performance by the applicant – whether she has been warned about that unsatisfactory performance before the dismissal.
 To the extent that reasons for dismissal were based upon unsatisfactory performance, the applicant was advised that improvement was required. This occurred in the context of the discussions on 10 February 2010. I have already dealt with the status and significance of those “warnings”.
Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.
 The respondent is not a small business within the meaning of the Act and in fact conducts a relatively significant business. It apparently has formal polices and procedures in place relating to the handling of performance matters and conduct likely to lead to dismissal.
 I do however accept that the size of the business and the degree to which Mr AD dealt personally with the dismissal is a factor to be considered. This does not however mean that the issues of natural justice lacking in the decision to dismiss the applicant can be overlooked. Further, the fact that the business has multiple work locations that could have provided options for alternative work for the applicant whilst a more fulsome process was conducted by the employer, is also a consideration in this matter.
Section 387(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.
 The apparent intent of this consideration is for Fair Work Australia, where appropriate, to take into account the absence of specialist advice in assessing the procedural elements of a dismissal.
 The respondent does not have (in-house) dedicated human resource management specialists however Mr AD confirmed that the company did have access to such advice and had apparently used this to establish their polices and procedures.
 In this case, there were significant procedural defects in terms of the process ultimately adopted by the respondent, particularly given the applicant’s apparent medical condition at the time and the events flowing from her consultation with the doctor. The absence of clearly articulated allegations or concerns and the absence of a genuine opportunity to respond to those concerns are amongst these deficiencies.
 In this case, some of these deficiencies have led to significant unfairness to the applicant. In relation to other issues, such as the absence of any formal confirmation of the full reasons for the termination, these deficiencies are arguably more technical in nature. Given that the employer apparently had comprehensive human resources policies and had access to external advice of this nature, the absence of dedicated human resources specialists is not a significant mitigating factor at least in terms of those procedural deficiencies that have actually affected the fairness of the dismissal.
Section 387(h) – any other matters that FWA considers relevant.
 The applicant’s relatively young age is a factor in this case. In that context, the impact of the approach of the respondent, and in particular, the absence of an opportunity to at least consider access to some support during the meetings and discussions, particularly given her state of mind and the nature of the issues being raised by the applicant at the time, becomes a relevant consideration in these circumstances. In particular, this has impacted upon the genuineness of the opportunity that the applicant had to respond to the concerns and views of the employer.
 The applicant’s employment as a casual for a relatively short period, albeit on a regular basis, is also a factor that is relevant to the nature of the dismissal.
Conclusion as to the nature of the dismissal
 Having regard to the considerations raised by s.387 and the facts of this matter, I find that the dismissal of the applicant was harsh, unjust and unreasonable in all of the circumstances. As a result, I find that the applicant was unfairly dismissed within the meaning of the Act.
 Division 4 of Part 3-2 of the Act provides as follows:
Division 4—Remedies for unfair dismissal
390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
391 Remedy—reinstatement etc.
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), FWA must take into account:
(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), FWA must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that FWA considers relevant.
Misconduct reduces amount
(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
393 Monetary orders may be in instalments
To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.
 The prerequisites of ss.390(1) and (2) have been met.
 Section 390 makes it clear that compensation is only to be awarded as a remedy where I am satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As a result, I must consider firstly whether reinstatement is inappropriate.
 The applicant does not seek reinstatement and has secured some alternative employment. In these circumstances I am satisfied that reinstatement under the Act is inappropriate.
 Accordingly, I must, having regard to the considerations in the Act, determine whether compensation in lieu of reinstatement is appropriate and if so, to what extent.
 Section 392(2) requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). These factors include in ss.(g) any other relevant considerations. Without detracting from the overall assessment required by the Act, it is convenient to discuss the identified considerations under the various provisions.
The effect of the order on the viability of the employer’s enterprise
 The respondent conducts a substantial business and there is no indication that any order for compensation as contemplated by the Act would impact upon the viability of the business.
The length of the person’s service with the employer
 The applicant was employed for approximately 16 months. This is not a significant period and when combined with the nature of her employment, leads me to be cautious in projecting the likely length of future employment and in assessing compensation.
The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
 This involves in part a consideration of the likely duration of the applicant’s employment in the absence of what I found to have been an unfair dismissal.
 In all of the circumstances of this case, I consider that a period of five weeks is an appropriate context for compensation and is the period that could reasonably be projected forward in this relationship. In making this assessment I have had regard to all of the circumstances operating at the time and also allowed for contingencies including that the applicant may have resigned her employment or alternatively been fairly dismissed in other circumstances.
 The applicant was regularly engaged and at the time of her dismissal, was working between 40 and 42 hours per week. Although it is possible that the extent of hours could have declined, I find that 40 hours per week is appropriate for present purposes given the relatively short period that I have projected above.
The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
 The applicant gained alternative employment some 10 days after her dismissal and in doing so took active steps to mitigate her losses. No reduction in the amount of compensation should therefore be made on this basis of (the lack of) efforts to mitigate.
The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
 The applicant has been continuously employed in her new position since that commenced in March 2010. The evidence as to the amount of earnings in that regard is unsatisfactory, primarily as a result of the apparent failure of the new employer to provide pay slips to the applicant.
 The early weeks in the new position involved as little as six hours per week however after three or four weeks, the hours have increased to be in the order of 30 hours per week. This level of work and consequent remuneration is significantly less than the 40 hours per week being undertaken with the respondent at the time of the dismissal.
 Given the lack of detail on this element, I have shaped the compensation order in such a way to take account of the actual earnings of the applicant when demonstrated.
The amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation
 This factor is not significant in this case given the period over which I have assessed the applicant’s losses.
Any other matter that FWA considers relevant and the remaining statutory parameters
 Subject to the limitations under the Act, I have considered all of the circumstances of this case in determining the remedy.
 There is no relevant misconduct that in my view should reduce the amount otherwise payable as compensation, as provided by s.392(3) of the Act.
 In light of the express requirements of s.392(4) of the Act, I will make no allowance for any shock, distress or humiliation that may have been caused by the manner of the dismissal.
 The amount of compensation that I assess as appropriate in this matter is significantly less than the maximum prescribed by s.392(5) of the Act.
Conclusions and orders
 I find that the dismissal of the applicant by the respondent was harsh, unjust and unreasonable and as a result, unfair within the meaning of the Act.
 I find that reinstatement is not an appropriate remedy in this case.
 I find that compensation is appropriate and should comprise a payment by the respondent equivalent to five weeks wages calculated at 40 hours per week at the rate payable upon termination, less the remuneration received by the applicant from her new employment in the five week period following her dismissal. That payment, less any required deduction of taxation, is to be made within 14 days of this decision, allowing for the fact that the applicant will need to provide evidence of her post dismissal remuneration.
 An order to that effect has been issued directly to the parties.
 Liberty is granted to apply to Fair Work Australia in the event that the parties cannot resolve the final dollar value of the compensation payment within the above parameters.
D Blairs of the Shop, Distributive and Allied Employees Association for the applicant.
AD, Managing Director for the respondent.
1 The conference was conducted in private as required by s.398(2) of the Act. I consider that the private nature of the conference should be reflected into the decision.
2 Attachment B of the applicant’s witness statement – exhibit A1 (with minor edits).
3 Explanatory Memorandum Fair Work Bill 2008 para 1541.
4 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, per Ross VP, Williams SDP, Foggo C, 15 June 2004 PR948009
5 Evidence of Mr AD in response to a question from FWA - transcript PN755.
6 MM Cables (A Division of Metal Manufacturers Limited) v Zammit, Print S8106, per Ross VP, Drake SDP, Lawson C, 17 July 2000.
7 Explanatory Memorandum Fair Work Bill 2008 para 1542.
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