[2013] FWC 36

Download Word Document

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jaime-Lee Price
v
EJ Cutting Pty Ltd
(U2012/13139)

COMMISSIONER LEE

MELBOURNE, 6 FEBRUARY 2013

Application for unfair dismissal remedy - whether dismissal was at the initiative of the employer, whether valid reason for dismissal - whether dismissal was harsh, unjust or unreasonable - Fair Work Act 2009 ss.387, 394.

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Jaime-Lee Price (the Applicant) claims that she was unfairly dismissed from her employment with EJ Cutting Pty Ltd (the Respondent). Mr. A. Ramadan is the Chief Executive Officer of the Respondent.

[2] The application was lodged 11 September 2012. The matter was listed for Jurisdiction (No Dismissal) and Arbitration Conference/Hearing (the hearing) before me on Tuesday 11 December 2012 to commence at 10.00am. The hearing of Tuesday 11 December 2012 was conducted in Melbourne. Mr. J. Price, the father of the Applicant, represented the Applicant. The Applicant gave evidence on her own behalf.

[3] The Respondent (or any representative of the Respondent) failed to appear at 10.00am on the relevant day. My associate was able to contact Mr. Ramadan by telephone shortly after 10.00am. Mr. Ramadan told my associate he believed that the matter was listed for the following day (12 December 2012). He stated to my associate that he may be able to attend by 1.30pm (on 11 December 2012).

[4] Having reviewed the file in this matter, it is clear that the matter was never listed for 12 December 2012 and the notice of listing sent to all parties was clear. While I was not satisfied that there was an acceptable excuse from the Respondent for failure to attend the hearing at the allocated time, I adjourned the matter until 11.30am to allow the Respondent time to attend the Tribunal.

[5] The Respondent was advised of the adjournment by my associate at 10.25am. This provided him with an hour to travel to the Tribunal. He was also advised by my associate that I would proceed to hear the matter at 11.30am. Mr Ramadan stated to my associate that he would attend the Tribunal at the revised time of 11.30am. At 11.30am there was still no appearance from the Respondent. Again my associate contacted Mr Ramadan by telephone. She was then advised by Mr. Ramadan that he had gone to attend to another work matter and was unable to attend the Tribunal. He was informed by my associate that the matter would proceed and be determined in his absence and he indicated he understood that to be the case. I have considered the material that the Respondent filed in the matter as well as the material filed and evidence given from the Applicant in determining the matter.

Background

[6] The Applicant was employed as an accounts manager for the Respondent from May 2011 until August 2012. This was the second period of employment of the Applicant with the Respondent. The first period was from March 2010 to February 2011. 1 Mr. Price made submissions that the Applicant was “coaxed...to come back on a second period of time.”2

[7] The Applicant claims that she was dismissed from her employment on 29 August 2012. That is the date the Applicant claims the dismissal took effect. 3 The Applicant claims that the date she was notified of or became aware of the dismissal was 31 August 2012.4

[8] The Respondent claims that the Applicant abandoned her employment on the 29 August 2012. The Respondent wrote a letter dated 29 August 2012 to the Applicant, which stated that:

[9] The Form F3 - Employer’s Response to Application for Unfair Dismissal Remedy (the Form F3) states in answer to the question “What is your response to the Applicant’s contention”, that the Respondent alleges the Applicant was “Not dismissed, walked out on the job never came back”. The Applicant refutes this and claims she was unfairly dismissed.

The law to be applied

[10] Section 394 of the Act provides that a person who has been dismissed may apply to FWA for an order under the Act granting a remedy. As the Applicant was dismissed before 31 December 2012, the Act provided at that the application must be made within 14 days after the dismissal took effect, or within such further period as FWA allows.

[11] The Applicant made her application for unfair dismissal remedy on 11 September 2012. It was clear on the evidence from both the Applicant and the written material from the Respondent that the dismissal took effect on 29 August 2012. I find that the application was made within the period required by subsection 394(2)(a).

[12] A person is protected from unfair dismissal if:

[13] Unfair dismissal is governed by Part 3-2 of the Act. Section 385 of the Act sets out what constitutes an unfair dismissal;

[14] With regard to s.385(a), section 386 of the Act sets out the meaning of ‘dismissed’. It is clear there is a dispute as to whether or not the Applicant was dismissed within the meaning of the Act. If the person has not been dismissed within the meaning of section 386 there is no jurisdiction for the Tribunal to determine the matter. This is clearly a key issue for determination and I will return to this matter later in the decision.

[15] In this matter there is uncontested evidence that the Applicant was employed from May 2011 until August 2012, a period in excess of 12 months. There is a question as to whether the Respondent is a small business or not to which I will return later in the decision.

[16] I note at this point that the Respondent did not answer the question in the Form F3 as to whether or not the Respondent was a small business. In any case, the period of employment is in excess of 12 months and therefore the Applicant has completed a period of employment with the employer of at least the minimum employment period and thus the requirement of section 382(a) of the Act is met.

[17] There is uncontested evidence that at the time of the dismissal, the Applicant was earning $50,000.00 per year. Payslips were tendered into evidence. Therefore it is clear that the Applicant’s annual rate of earnings were less than the high income threshold and that section 382(b) is met.

[18] With regard to s.385(c), as discussed above it is not clear whether or not the Respondent was a small business at the time of dismissal, within the meaning of section 23 of the Act. As already mentioned, the Respondent did not answer the question on the Form F3 and did not appear in the proceedings.

[19] The Applicant gave evidence at the hearing that she thought the Respondent had between 15 and 20 employees. It is therefore possible that the Respondent was in fact a small business within the meaning of the Act at the time of the dismissal.

[20] With regard to s.385(d), there was no suggestion that the Applicant’s dismissal was a case of genuine redundancy. Section 385(d) does not apply in this matter.

[21] In conclusion, the key matters for determination as to whether the Applicant was unfairly dismissed are whether or not the Applicant was dismissed within the meaning of section 386 of the Act, and if so, whether the dismissal was harsh, unjust or unreasonable (section 385(b)) and if the Respondent is a small business under the Act, whether the dismissal was consistent with the Small Business Fair Dismissal Code (the Code).

Section 396 of the Act requires that I consider whether the dismissal was consistent with the Code before considering the merits of the application. Given the facts of this matter, I have determined that the dismissal was not consistent with the Code. My reasoning follows the outlining of the facts of this matter and my consideration of whether the dismissal was harsh, unjust or unreasonable, at paragraph [61].

[22] As discussed above, section 386(1)(a) of the Act provides that a person has been dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative.

[23] In Mohazab v Dick Smith Electronics Pty Ltd (No 2) 6, the Full Court of the Federal Court stated that;

[24] The Full Court further stated that;

The evidence:

[25] As the submissions and evidence dealt with both the jurisdictional issue as well as the question of whether the dismissal was unfair, it is appropriate to set out the relevant submissions and evidence before dealing with each of the matters to be determined. I have considered the sworn evidence of the Applicant as well as the submissions and unsworn witness statement filed by the Respondent. A great deal of the evidence is not contested. However, there are some key differences on the versions of the facts as between Mr. Ramadan for the Respondent and the Applicant.

[26] The Applicant worked for a company trading as EJ Cutting Pty. Ltd. Mr. Ramadan is the Chief Executive Officer of that company. According to the Applicant, Mr. Ramadan is also the Chief Executive of a second company which operated out of the same building, known as EJ Balustrades Pty. Ltd.

[27] Mr. David Scott is the manager of EJ Cutting Pty. Ltd. and was the direct manager of the Applicant. The Applicant stated that he gave her “orders and [she] worked very closely with him”. 8 The Applicant also gave evidence that she undertook work from time to time for EJ Balustrades Pty Ltd.9

[28] The key events in this matter are the discussions that took place between the Applicant and Mr. Ramadan on the morning of 29 August 2012 as well as the preceding days discussions with Mr. Scott.

[29] The evidence of the Applicant is that she had been liaising with Mr. Scott over the preceding evening and early on the morning of 29 August 2012 as “...David and I had been working together to sort out cancelling old purchase orders so that he could order other material that he required for overdue jobs.” 10

[30] The evidence of the Applicant is that she was asked by Mr. Ramadan to place an order for supplies with a company known as “One Steel”. The Applicant claims that the material that Mr. Ramadan wanted the Applicant to order was for the use of EJ Balustrades Pty Ltd, but that the order was to be placed on the EJ Cutting Pty Ltd account with “One Steel”. The Applicant says that she replied to Mr. Ramadan that she could not place the order as EJ Cutting Pty Ltd was over its credit limit with “One Steel”. The Applicant claims that she stated to Mr Ramadan that she “...had been directed by [her] manager, David, to sort out his material first and then if [EJ Cutting Pty Ltd had] any credit left, [she could] then order what [Mr Ramadan needed]”. 11 According to the Applicant, being placed on “credit stop” was a regular occurrence when she worked for Respondent.

[31] The Applicant claims that Mr. Ramadan stated that Mr. Scott had cancelled an order for $60,000.00 and that this had freed up money to spend. The Applicant claims she disputed that this was the case. The Applicant claims that she informed Mr Ramadan of her prior dealings during the day with “One Steel” and that she expected that she would get an email reply from “One Steel” and that would give her “insight” as to whether his request could be complied with.

[32] The Respondent’s Form F3 does not provide any information as to the discussions that took place between Mr Ramadan and the Applicant on 29 August 2012. The Respondent’s written submissions relevantly state:

[33] The letter written to the Applicant on 29 August 2012 by the Respondent states that;

[34] In summary, there is no dispute on the evidence that the Applicant was directed by Mr Ramadan to place an order. However, the Applicant was clear in her evidence that she did not say she would not do what was asked but rather she could not do what was asked of her. 14

[35] The Applicant’s evidence is that Mr. Ramadan then became annoyed and angry. The Applicant claimed that;

[36] The witness statement of Mr. Ramadan, does not directly dispute the allegations of standing over and swearing. He does however characterise the conversation as occurring in a completely different manner. Mr. Ramadan’s recollection of the conversation was provided as follows;

[37] The Applicant claims that she then spoke to a fellow employee, packed her bag, sent a text message to her immediate manager Mr. Scott and took her lunch from the fridge. Mr. Scott then arrived at the workplace. The Applicant claims she had a conversation with Mr Scott about the incident. The Applicant stated that Mr. Scott said he would speak to Mr. Ramadan.

[38] The Applicant then sent a text to two work colleagues, “James” and “Elizabeth”, saying she was sorry she had to leave but was very upset as to how she was spoken to. There was no reply from James. Elizabeth replied saying “Well from my understanding you wouldn’t do what [Mr Ramadan] asked. He gave you two options and you chose to leave. So thanks for everything”. 16

[39] In the afternoon of 29 August 2012, the Applicant returned to the office to switch over her mobile phone to a new phone that had been ordered. Returning to the workplace in the afternoon to do this after the events of the morning seems odd in the circumstances, however the Applicant claims that she was stressed at that time as a result of the events. 17 Mr. Scott on that afternoon asked the Applicant to return her keys to the office and filing cabinet as well as her phone. The Applicant said in evidence she did not query why that was the case but felt it best not to query as she didn’t want any more trouble starting for the day. She was informed by Mr. Scott that James, Elizabeth and Mr. Ramadan did not wish to see or speak to her.

[40] On the following morning, she phoned Mr. Scott to say that she was ill and was unable to attend work. She said she would return to work on the Friday and would produce a medical certificate at that time. She claimed Mr. Scott responded with “Let me go talk to them upstairs and see what they have to say and then I will get back to you.” 18 However, there was no further contact on that day from the office of the Respondent.

[41] The Applicant claims that she presented for work on the Friday and was told by Mr Ramadan that she had abandoned her employment on the Wednesday after failing to follow direct orders.

[42] As discussed above, Mr Ramadan did not appear and did not give sworn evidence. The Respondent’s outline of submissions was brief. Neither the Respondent’s submissions, nor Mr Ramadan’s witness statement deal with the Applicants claims that she could not follow the instruction to place the order because of the “credit stop” and do not deal with the Applicant’s claims regarding the conflicting instruction from Mr Scott to deal with the other order first.

Was the applicant dismissed? (s 385(a))

[43] There is no doubt that the Applicant was directed to place an order with “One Steel” to supply products to EJ Balustrades by Mr. Ramadan. Whether or not this was a lawful and reasonable direction I will deal with subsequently.

[44] It is also clear that the Applicant was asked to choose between following the direction of Mr. Ramadan and leaving the premises. The two key points of difference in the submissions and evidence between Mr. Ramadan and the Applicant are the manner in which the direction was given and the evidence of the Applicant that she did not refuse but rather indicated she could not place the order as the company was over its credit limit.

[45] I only have the sworn evidence of Applicant. I found her to be a cogent and credible witness overall. I have no reason to disbelieve her version of events so far as they are relevant to determining the jurisdictional point. I am satisfied on the evidence of the Applicant that Mr. Ramadan did swear at and stand over her while issuing the direction to place the order with “One Steel”. I do not accept the characterisation of the conversation put forward by the Respondent.

[46] Against the background of the swearing and standing over by Mr. Ramadan, it would have been a surprise if the Applicant had not left the workplace on the Wednesday. I am not convinced by the evidence of the Applicant however that she chose that very day to return the phone because she was stressed. It is also noteworthy that Mr. Scott asked her for her keys to be returned that day as well as the mobile phone. She was also told that no-one wished to speak to her. These are all indications that the employment relationship had already come to an end on that day. There is no suggestion from either party that the Applicant resigned from her employment.

[47] The Respondent claims the Applicant abandoned her employment. I do not agree. It is apparent on the facts that the Applicant took the only option reasonably open to her on the day of leaving the workplace, having been given, in effect, an ultimatum by Mr Ramadan. The Applicant leaving the workplace was clearly at the initiative of the employer. The Applicant was in contact with the employer on the Wednesday afternoon to exchange her mobile phone. The employer took her office keys and phone at that time. She phoned the employer on Thursday to advise she was absent with an illness. She presented to the workplace at the usual start time on Friday. At that time she was told she was no longer employed.

[48] Were it not for the actions of the Respondent, it would be expected that the Applicant would still be employed. It is clear on the facts that the applicant was dismissed at the initiative of the Respondent. 19 I find that the Applicant was dismissed within the meaning of s386(1) (a) of the Act.

Was the dismissal harsh, unjust and unreasonable? (s. 385(b))

[49] As set out above, the criteria for considering whether a dismissal was harsh, unjust or unreasonable is set out in section 387 of the Act.

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

[50] In this matter, whether there was a valid reason for the dismissal turns on whether the Applicant failed to follow a lawful and reasonable direction from the Respondent. There is no doubt on the evidence that the Applicant was given a direction to place an order by Mr Ramadan.

[51] In order for a direction to be valid it must be both lawful and reasonable. 20 A first consideration is whether or not the direction was lawful. There was certainly no suggestion from the Applicant that she viewed the direction as unlawful. However, as I have already mentioned, the direction was to order the material for the use of EJ Balustrades Pty. Ltd. through the account of a different company, EJ Cutting Pty. Ltd. This raises a question as to whether or not it is lawful to order materials through the accounts of one company for use in the activities of another company. However, in the absence of any submissions on this point, I find the direction was lawful.

[52] The second consideration is whether the direction was reasonable. The evidence demonstrates that there is some confusion present in the workplace as to the relationship between the two authority figures, Mr. Scott and Mr. Ramadan, combined with the two separate companies who seem to operate in an overlapping manner. The Applicant was carrying out a direction from Mr. Scott and was given conflicting information from Mr. Ramadan. When she questioned her ability to place the order I have found she was shouted at and told to comply or leave. The Applicant had legitimately questioned the capacity to place an order, as requested by Mr. Ramadan, with “One Steel” given the credit restriction. Mr. Ramadan in his own written submissions makes clear that the credit limit problem with “One Steel” was real but claimed it had been resolved by his removing one of the orders. This conflicted with the information and the directions the Applicant had received from Mr. Scott. In the circumstances, she asked that she wait for the email reply from “One Steel” to confirm that she could place the order. This was met with aggressive and abusive behaviour on the evidence of the Applicant from Mr. Ramadan.

[53] The direction given to the Applicant to place the order with “One Steel” may have been lawful but in all the circumstances it was not reasonable. There is no suggestion of any other conduct or performance that could constitute a valid reason for dismissal.

[54] In this case, the interaction of Mr. Scott, the Applicant and Mr. Ramadan, the circumstances which lead up to the discussion between Mr. Ramadan and the Applicant on the Wednesday morning and the circumstances that accompanied the discussion, characterise the nature of the conduct involved. The conduct of the Applicant was not committed in a vacuum. 21 In this context, I find there was not a valid reason for the dismissal.

Section 387(b) - whether the person was notified of that reason.

[55] The Applicant was not notified of the reason for her dismissal. She was told to make a choice between placing the order and walking out the door. She was then told she was no longer in employment as she was said to have abandoned her employment. In the circumstances it was not clear to her that she had been dismissed.

Section 387(c) - whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person.

[56] This is not relevant as I have found there was no valid reason. 22

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

[57] There was no refusal by the employer to allow a support person as there were no discussions held in relation to the dismissal.

Section 387(e) - if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal.

[58] This provision is not relevant as there were not performance related concerns discussed before the dismissal.

Section 387(f) - the degree to which the size of the employer’s enterprise would be likely to impact on procedures followed in effecting the dismissal and 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

[59] The Respondent is a business of 15-20 employees. It is not a large business and there was no suggestion it had any level of human resources expertise. This lack of capacity in the human resources area will have had some impact on the procedures followed in effecting the dismissal.

Section 387(h) - any other matters FWA considers relevant.

[60] There are no other matters relevant to my consideration in this matter.

Was the dismissal consistent with the Code? (s.385(c))

[61] As discussed, it is possible that the Respondent was a small business within the meaning of the Act at the time of dismissal. The Small Business Fair Dismissal Code provides as follows;

[62] I have determined there was no valid reason for dismissal present in this case. I find that the actions of the Applicant were not in a category sufficient to be “serious misconduct” under the Code. I do not consider summary dismissal in this matter was consistent with the Code in this matter.

[63] In terms of the requirements of “Other dismissal”, the employee must be given a valid reason based on the employees conduct or capacity to do the job. In the circumstances of this case, there was no valid reason, for the dismissal. I do not consider dismissal of the Applicant to be fair if the Code applies.

Conclusion as to the nature of dismissal

[64] For the reasons set out above, I find that the Respondent did not have a valid reason to dismiss the Applicant from her employment. She was not notified or given an opportunity to respond. I have considered the size of the Respondent’s enterprise and the evident lack of human resources expertise. However, this lack of expertise does not excuse behaviour of the Respondent in this case in failing to follow any type of procedure to effect the dismissal.

[65] In all of the circumstances I find that the dismissal was harsh, unjust and unreasonable and I find it was not consistent with the Code (if it did apply to the Respondent at the time of dismissal)

Remedy

[66] The relevant provisions of the Act pertaining to remedy are contained in section 390 of the Act:

[67] It also necessary to consider the Objects of Part 3-2 of the Act especially section 381(c) of the Act which provides that an object of that Part of the Act is to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

[68] The presumption in the legislation is that should a dismissal be found to be unfair, that reinstatement is the primary remedy and that compensation is a secondary consideration if reinstatement is not appropriate.

[69] In this matter, the Applicant does not seek reinstatement. 23 The Applicant has secured further employment as of 12 April 2012.

[70] Reinstatement in the circumstances of this case is not an appropriate remedy. The Applicant has successfully secured further employment and does not seek reinstatement. Mr. Price, the Applicant’s father made submissions that he felt the work environment was intimidating and not a good environment for his daughter to be employed in. In these circumstances, I consider reinstatement to not be an appropriate remedy.

[71] Having determined that reinstatement is not appropriate I must consider what compensation, if any, is payable, in lieu of reinstatement.

[72] The Act provides for compensation as a remedy for unfair dismissal.

[73] In all of the circumstances, I consider that the award of some amount of compensation is appropriate in this matter.

[74] In determining the amount of compensation, I must have regard to “all the circumstances of the case” including each of the paragraphs in s.392(2) of the Act as set out above. No one matter is paramount but regard must still be had to each of them. 24

[75] The general approach to the calculation of compensation was well set out by the Full Bench in Tabro Meat Pty Ltd v Kevin Heffernan 25 and I will follow that approach in determining this matter.

Section 392(2)(c) - the remuneration that the person would have received or would have been likely to receive, if the person had not been dismissed.

[76] The Applicant’s annual earnings were $50,000.00 gross per annum with superannuation of 9%. I will use this amount as the basis for calculating the amount of compensation to be awarded in this case.

[77] I have no submissions from the Respondent as to how long it was expected the employment relationship would have continued were it not for the dismissal taking place.

[78] The Applicant gave evidence she had no intent of leaving the workplace and that she was in a good role and enjoyed her position. 26 The Applicant’s representative submitted that she was happy in her employment and the workplace was conveniently located. There was no suggestion that there were any other issues in the workplace impacting on the Applicant’s ability to continue employment.

[79] I think it is reasonable to assume that, but for the dismissal, that in all of the circumstances the employment relationship would have continued for a further period of 5 years.

[80] Accordingly, I calculate the remuneration that the Applicant would have received or would have been likely to receive, if her employment had not been terminated, at $250,000.00 plus 9% superannuation.

Section 392(2)(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 section 392(2)(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

[81] In the circumstances of this matter, subsections 392(2)(e) and 392(2)(f) can be dealt with together. The Applicant was unemployed from the date of her termination (29 August 2012) to 18 October 2012, a period of 7 weeks. Since 18 October 2012, the Applicant has been employed.

[82] Mr. Price for the Applicant submitted that the remuneration for the Applicant’s subsequent position is $40,367.08. There is no other remuneration earned by the Applicant.

[83] In Ellawalla v Australian Postal Corporation 27, with respect to a precursor provision, the Full Bench stated that “[o]nly monies earned during the period from termination until the end of the anticipated period of employment are deducted”.

[84] I think it is reasonable to assume, in the absence of evidence to the contrary, that the Applicant will continue to earn from her recently secured position until the end of the anticipated period of employment.

[85] A deduction is therefore appropriate of $196,401.37 28 representing the monies earned during the period from termination until the end of the anticipated period of employment. This deduction results in an amount of $53 598.63 plus 9% superannuation.

Section 392(2)(g) - any other matter that FWA considers relevant

[86] It is relevant that the Applicant’s representative, Mr. Price, when asked what compensation was sought by the Applicant, answered that the Applicant sought a remedy of payment for lost wages for the time period the Applicant was unemployed (approximately 7 weeks). He stated that the Applicant also sought the payment of $300 claimed as an unauthorised deduction from wages for the breakage of a mobile phone as well as a claim for alleged non payment of superannuation for a period of the employment.

[87] I have considered this submission in determining the appropriate amount of compensation amongst the other circumstances I am required to take into account. I note that I do not have the jurisdiction to deal with claims for unpaid superannuation or alleged unauthorised deductions in determining this matter. I also note that I am required to consider all of the matters contemplated.

[88] Ordinarily a deduction for contingencies is appropriate. 29 A deduction for contingencies is appropriate in this case. While the percentage to be deducted for contingencies is a matter for judgement, I think that a deduction of 25% is appropriate in the circumstances of this matter.

[89] This results in a provisional amount of compensation of $40,198.98. plus 9% superannuation.

[90] There are no other matters that are relevant to the determination of compensation other than ss.392(2)(a),(b) and (d), 392(3) and 392(5) of the Act. I will turn to those factors now.

Section 392(2)(a) - the effect of the order on the viability of the employer’s enterprise

[91] The Applicant’s representative submitted that the Respondent was “operating under a number of companies and should be able to keep the company quite viable”. 30 There were no submissions made by the Respondent on the financial position of the Respondent and whether there might be an impact on the viability of the Respondent if an order for compensation was made. In the absence of any evidence to the contrary, I do not expect the award for compensation to affect the viability of the Respondent.

Section 392(2)(b) - the length of the persons service with the employer

[92] The Applicant was employed by the Respondent on two separate occasions. The second and relevant period of employment was from May 2011 to August 2012, approximately 16 months. This is not a long period of employment and is the only relevant period of employment in my consideration of compensation. I do find that the relatively short length of service provides a basis for reducing the amount of compensation to be awarded. I will deduct an additional 20% to account for the relatively short period of employment. This results in a provisional amount of compensation of $32,159.19 plus 9% superannuation.

Section 392(2)(d) - the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[93] Evidence was provided by the Applicant as to the efforts she went to in the period after the dismissal to secure alternative employment. She applied for a large number of jobs and attended a lot of interviews. The Applicant was successful in securing employment by October 2012. Her mitigation efforts are considerable and sufficient to exclude any deduction from the quantum of $32,159.19 plus 9% superannuation.

Misconduct (s.392(3))

[94] I have found that the Applicant was not dismissed for a valid reason and that no misconduct was in evidence. Therefore there is no basis to make a further deduction for misconduct.

Compensation Cap (s.392(5))

[95] As the amount of $32,159.19 plus 9% superannuation is more than the legislative compensation cap a further deduction for that reason is required. The amount of the compensation cap in this case is $25,000 plus 9% superannuation (that being the total amount of remuneration to which the Applicant is entitled for a period of 26 weeks).

Conclusion and order as to remedy

[96] I find that reinstatement is not an appropriate remedy in this case.

[97] I find that compensation is appropriate.

[98] I am satisfied that an order for payment of compensation by the Respondent of $25,000.00 gross plus 9% superannuation less tax as required by law, to the Applicant in lieu of reinstatement is appropriate in all the circumstances of the case. It accords a fair go all round to both the Respondent and the Applicant.

[99] The compensation payment, less any required deduction in taxation, is to be made within 14 days of this decision.

[100] An Order [PR533861] to this effect has been issued with this decision.

COMMISSIONER

Appearances:

J Price for the Applicant

Hearing details:

2012

Melbourne:

December 11

 1   Witness Statement of Ms Jamie-Lee Price, [1]

 2   PN252

 3   See Form F2 - Application for Unfair Dismissal Remedy, question 1.

 4   PN171

 5   Attachment 1 to Form F2 - Application for Unfair Dismissal Remedy, [7]

 6   (1995) 62 IR 200

 7   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205

 8   PN63

 9   PN107

 10   Witness Statement of Ms Jamie-Lee Price, [4]

 11   Witness Statement of Ms Jamie-Lee Price, [4]

 12   Respondent’s outline of submissions, [1] - [2]

 13   Attachment 1 to Form F2 - Application for Unfair Dismissal Remedy, [2]

 14   PN 131

 15   Witness Statement of Ms Jamie-Lee Price, [4]

 16   Witness Statement of Ms Jamie-Lee Price, [4]

 17   See PN 91

 18   Witness Statement of Ms Jamie-Lee Price, [5]

 19   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200

 20   R. v Darling Island (1938) 60 CLR 601 per Dixon J

 21   Qantas Airways Ltd. v Cornwall [1998] 84 FCR 483

 22   Chubb Security Australia Pty Ltd v Thomas Print S2679

 23   see PN 17 - 24

 24   Tempo Services Limited v Klooger and Others, PR953337, [22]

 25   [2011] FWAFB 1080

 26   PN173

 27   Print S5109

 28   Calculated as follows; 5 years (anticipated period) x $40,367.08 (currently secured annual wage) minus seven weeks (unemployed period) at $776.29 (current weekly wage).

 29   See Slifka v JW Sanders Pty Limited (1995) 67 IR 316 at 328

 30   PN250

Printed by authority of the Commonwealth Government Printer

<Price code C, PR532859>