Fair Work Act 2009
s.394—Unfair dismissal

Maria Zito
v
Goulburn Valley Imaging Group T/A G.V.I. Pty Ltd
(U2014/5652)

Application for relief from unfair dismissal.

[1] Ms Maria Zito alleges that the termination of her employment by Goulburn Valley Imaging Group was unfair.

Jurisdiction of the Fair Work Commission

[2] There is no dispute that Ms Zito is a person who was protected from unfair dismissal. Further the employer was not, at the time of the termination of Ms Zito’s employment, a small business. Goulburn Valley objected to Ms Zito’s application because Ms Zito was made redundant and Goulburn Valley submitted that this was a genuine redundancy 1 and therefore Ms Zito could not have been unfairly dismissed.2

Was this a genuine redundancy?

[3] A genuine redundancy has three elements:

1. The employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;

2. The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy; and

3. It would not have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.

[4] If and only if all three elements are satisfied is it a genuine redundancy.

The Evidence

[5] Mr Stavros Dodos, Goulburn Valley’s General Manager, gave evidence that in September 2013 Goulburn Valley decided to conduct an organisational review. Goulburn Valley had grown very quickly and as a result there were inefficiencies including some staff having little to do, unnecessary doubling up and there were unduly complex processes. 3

[6] After the appointment of a new partner in late 2013, Goulburn Valley reviewed “business structure[s] for possible efficiencies and productivity gains.” 4

[7] Goulburn Valley engaged new accountants to “inject new ideas and strategies into the business.” 5 The accountants benchmarked the practice against other like businesses and made recommendations about improvements.6 Mr Dodos accepted that these accountants were not engaged until February/March 2014 but he said he had been talking to them since late 2013 and they had been looking at his books.7 Mr Dodos also gave evidence that self audits of the business had been done as well.

[8] In late 2013, Mr Dodos made a recommendation to the partners that Ms Zito’s position be made redundant. 8

[9] Mr Dodos did not speak to Ms Zito about her workload for the purpose of the review either before he made the recommendation or after. 9 He also gave evidence that no one raised Ms Zito’s role with him.10 He relied upon his own knowledge of her role.11 He also did not discuss his recommendation or his reasons for the recommendation with Ms Denise Frans, the Human Resources Manager, either before or after he made the recommendation.

[10] In late January 2014, a memo was circulated to all staff advising them of the review. 12 Ms Frans gave evidence that she went into the office when Ms Zito was present and gave her or the other person the notice. She said she told them they should read the notice and discussed the content of the notice with them. She told them that if they had any concerns or questions that they could discuss them with her or Mr Dodos.13

[11] As a result of proposed automation of some of the Australian Defence Force (ADF) work which was to be implemented in February 2014, it was concluded that the amount of work required to be performed Ms Zito would be reduced. 14

[12] Around the same time, due to issues with licensing, it was decided to transfer the job of importing images from Ms Zito to other staff. 15

[13] Mr Dodos gave evidence that when Ms Zito was absent, her GoSonics work only required about an hour’s work for other staff. 16 Ms Frans confirmed this assessment.17

[14] Consequently Mr Dodos concluded that Ms Zito’s role would be reduced to one hour of regular work per day with some irregular work. Mr Dodos decided that this work could be absorbed by other roles and he concluded that Ms Zito’s position would be made redundant.

[15] Mr Dodos gave evidence that Ms Zito’s work is now being performed by other staff and he had not put on new staff to do the work. It was his evidence that the work was being adequately performed by those staff along with their other duties. 18

[16] Mr Dodos gave evidence that in January 2014 Goulburn Valley attempted the give Ms Zito more work. A phone line was installed in her office so that she could answer telephone calls. She was also asked to assist with typing. Mr Dodos gave evidence that Ms Zito resisted these changes and asked for the phone line to be removed from her office. 19

[17] The partners advised him on 17 February 2014 that they accepted his recommendation. 20

[18] In his witness statement, Mr Dodos said that he and Ms Frans considered whether there were any other positions Ms Zito could fill and decided that there were no such positions. 21 In his evidence in chief, Mr Dodos gave evidence that he did not look for redeployment opportunities for Ms Zito once the decision to make her redundant was made.22

[19] Because of concerns about Ms Zito’s access to confidential information and because Ms Frans was not available on 20 and 21 February 2014, it was decided that Ms Zito would not be informed of the decision until 24 February 2014. 23

[20] On 24 February 2014 Mr Dodos and Ms Frans met with Ms Zito and gave her a copy of the January notice and explained the review had impacted her position and that her position was to be made redundant. They advised her that they had considered alterative positions but had been unable to identify any positions. 24

[21] Both Mr Dodos and Ms Frans gave evidence that Ms Zito said she was not surprised that her position was made redundant and she had expected her position to be done away with. 25

[22] Mr Dodos said that Ms Zito raised matters unrelated to the redundancy and she was then provided with a copy of the letter outlining the redundancy package. Mr Dodos said that Ms Zito did not seek any further discussions with him about the decision. 26

[23] Mr Dodos accepted that two casual customer services officers (CSO) commenced employment, one on 12 February 2014 and the other, on 17 February 2014.

[24] Mr Dodos, in cross examination, described these positions as full time, despite them being filled by casual employees. 27

[25] Ms Frans said these casual employees were employed to cover rostering gaps. She said that they were not guaranteed hours and that while they would have significantly more hours when they were training for 3-4 weeks, their hours would drop back after that. 28 She said one did not last very long and the other only became full time when another staff member resigned.29

[26] It was Mr Dodos’ evidence that the decision to fill these positions was taken before the decision was made to make Ms Zito’s position redundant. 30 Ms Frans did not consider redeploying Ms Zito to a customer service position because the positions had been filled.31

[27] Ms Zito gave evidence that she was responsible for GoSonics, the ADF contract, the SMI Key Admin contract and SMI CSO’s. 32 In addition she performed various other administrative duties. At times she did the work of customer service officers.33

[28] Ms Zito gave evidence that the automation of the ADF contract was not in place when her employment was terminated and, in any event, most of her work associated with that contract was involved in billing and that was not affected by the automation. 34 She did accept that she had performed work on the implementation of the automation35 but that it was still not fully automated. It was her evidence that the GoSonics work took her 4-5 hours per day. It was her evidence that her workload had not reduced in the time the review was being conducted.36

[29] Ms Zito strongly rejected Mr Dodos’ assessment of how long her work took. 37

[30] In addition, she rejected the contention that she was not willing to do additional work and said she helped out when she could. Ms Zito could not recall asking to have the phone line removed but she did say that she was not coping with the phone. 38

[31] Ms Zito gave evidence that she was unfairly selected for redundancy because of her complaints about bullying and intimidation that had occurred over the last 12 months. 39

[32] Ms Zito denied that she was given a copy of the organisational review memorandum dated 31 January 2014 and notes that the memo was in fact dated 31 January 2013. 40

[33] Ms Zito gave evidence that she could have been offered the work being done by the two casual staff who were appointed in February 2014. In addition she said that Goulburn Valley knew in December 2013 that another staff member intended resigning. Ms Zito acknowledged that, at the time of her dismissal, this person had not resigned. Mr Dodos accepted that he had been told that this staff member intended resigning when she got another job but she did not in fact resign until June 2014. 41

[34] It was put to Mr Dodos that, given the timing of the review, Goulburn Valley should not have employed new staff until the review was completed. Mr Dodos replied that these staff were casual staff who were needed to work on the front desk. 42 He accepted that Ms Zito could have done that work.43

[35] Ms Frans gave evidence that once she was advised that Ms Zito’s position was redundant, she checked to see if there had been any resignations she did not know about. She said she was aware that there were no other relevant vacancies. She said she checked this again on the 24 February 2014. 44 Ms Frans maintained that the two casual positions had been filled by that time. Ms Frans said that they had not employed anyone to do Ms Zito’s work as it had been absorbed by other staff.45

[36] Ms Frans said that the only consultation that occurred with Ms Zito was that she was told her position was to be made redundant and redeployment was not possible. 46

[37] Ms Frans accepted that there had been no discussion with Ms Zito of alternative duties or lesser hours of work. 47 Ms Frans accepted that if Ms Zito had raised the casual positions with her she would have discussed this with her as those positions had no guaranteed hours and involved going to other sites.48

Did Goulburn Valley no longer require Ms Zito’s job to be performed by anyone because of changes in the operational requirements of their enterprise?

[38] As the Full Bench said in Roy Morgan Research Ltd v Baker, 49 if an employer wishes “to contest an application for relief in respect of the termination of an employee made redundant as a consequence on the basis that the redundancy was due to the changed operational requirements of its enterprise (ss.385(d) and 389(1) of the Act), it must produce evidence to the Commission to support such a proposition, including evidence of the changed operational requirements.”50

[39] The evidence of Mr Dodos, which was not challenged, was that in late 2013 the business operations were reviewed. As a result of that he made a recommendation to the partners that Ms Zito’s position be made redundant. His decision was based on his view that Ms Zito’s workload would reduce because of the automation of the ADF contract and because he considered that her work could be absorbed by others. He had this view because when Ms Zito was absent her work was completed without difficulty by other staff.

[40] In contrast, Ms Zito submitted that her workload was not reduced by the automation of the ADF contact. I accept her submission. However I accept that the work she performed in the implementation of the automation of the ADF contract had wound down.

[41] While I share Ms Zito’s view that, if Mr Dodos was of the view that she was not using her time efficiently, she should have been given the opportunity to respond to that concern, I accept the evidence of Mr Dodos and Ms Frans that they attempted to deal with this by asking Ms Zito to undertake additional duties. I accept that Ms Zito helped out where she could but that she gave priority to her core tasks.

[42] Mr Dodos’ evidence about why Ms Zito was made redundant is confused. While in his statement he stated that the review disclosed a number of changes which impacted on Ms Zito’s job, he had already recommended Ms Zito’s position be made redundant in December 2013 before the announced review commenced. There was no evidence that he went back to the partners with the outcome of the review prior to them making the decision to make Ms Zito’s position redundant.

[43] This causes me to have some doubt about the changes in operational requirements of the business relied upon by Mr Dodos to explain his recommendation to the partners that her position be made redundant.

[44] However in the end I have decided, on the balance of probabilities, that there were changes in the operational requirements that meant that Goulburn Valley no longer required Ms Zito’s job to be done by anyone.

[45] It was not contested that Mr Dodos undertook some review of the practice in late December 2013 and that he was tasked with finding efficiencies. One of the efficiencies he identified was that Ms Zito’s role could be absorbed by others. Mr Dodos was entitled to make that assessment and it is an assessment which has been born out in practice. No additional staff have been employed to fill Ms Zito’s role.

[46] It was submitted by Ms Zito that the work she was performing before her employment was terminated is still being done. 51 It was submitted that there had been no issues raised about Ms Zito’s performance prior to the termination of her employment.

[47] It is clear that a redundancy arises even if an employer decides to reallocate tasks to a lesser number of employees.

[48] That is clearly what happened here. It happened because of an initial review recognised that efficiencies could be achieved. As a consequence Mr Dodos recommended to the partners in December 2013 that Ms Zito’s position be made redundant. Mr Dodos also put in place a wider review and employees were notified about that in January 2014.

[49] Ms Zito’s concern, that she was selected for redundancy because of her complaints even if true, is not a relevant consideration in determining whether Goulburn Valley no longer required her job to be done because of changes in their operational requirements. These would be a consideration if I found that there were no operational requirements, but in this case I have found on balance that there were operational requirements.

Did Goulburn Valley meet its obligations under the agreement to consult with Ms Zito?

[50] The Health Professionals and Support Services Award 2010 (the Award) provides, at clause 8, for consultation. I do not replicate the clause here, it is in the standard form.

[51] It was submitted by Mr Ritchie that the commencement of the consultation process occurred with the memo, mistakenly dated 31 January 2013 but distributed on or around 31 January 2014. It is difficult to reconcile Ms Frans’ and Ms Zito’s evidence about that notice. Ms Frans clearly recalls giving the notice either to Ms Zito or another person sitting in the same office and advising Ms Zito of the content of the notice and Ms Zito is equally adamant that she did not receive it.

[52] Even if I accepted Ms Frans’ evidence, that notice advised of a review. This review was irrelevant to the decision to make Ms Zito’s position redundant. The recommendation had already been made. There is no evidence that the review identified Ms Zito’s position for redundancy or that Mr Dodos returned to the partners with any additional information from the review that influenced their decision.

[53] In any event, the obligation to consult arises after the decision has been made and that did not occur until February 2014.

[54] Mr Ritchie submitted that the consultation occurred at the meeting on 24 February 2014. It was said that Ms Zito was provided with a copy of the ‘31 January’ notice at that time. Mr Dodos told her that her position had been made redundant on operational grounds as the organisation no longer needed a part time RIS administrator. He told Ms Zito that there were no suitable alternative positions available. Mr Ritchie accepted that it was cursory consultation at best but he submitted in all the circumstances it was acceptable.

[55] Mr Ritchie supported this submission by reference to various decisions of the Commission 52 and submitted that the Commission should take a practical and non prescriptive approach to consultation. While I do not disagree with this approach, consultation must be real and not illusionary. So much is clear from the jurisprudence associated with these clauses.

[56] The Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 required the Australian Industrial Relation Commission to commence the award modernisation process. That Act provided that modern awards may include terms that provided procedures for consultation, representation and dispute resolution. 53 The Full Bench54 of the AIRC, when it developed the model consultation clause, said as follows:

“Consultation

[18] We have decided to include award obligations upon employers to notify employees and their representatives of significant workplace change and to discuss the change. The draft clause is in similar form to the provision introduced by the Commission more than 20 years ago. We propose that the draft clause be a standard one in modern awards.”

[57] The reference to the provision introduced more than 20 years ago was a reference to the Termination, Change and Redundancy Case 55 where the Full Bench of the Australian Conciliation and Arbitration Commission said:

“Nevertheless, we believe that it is of fundamental importance to involve employees and their representatives in the problems of redundancy as soon as a firm decision has been taken that retrenchments may be necessary and we are prepared to make an award provision to that effect.

We have taken the expression “as soon as a firm decision has been taken” from the NLAC Guidelines and we are not prepared to go any further, particularly having regard to the fact that our decision will apply to redundancy, whatever may be the cause.

However, we would indicate that we are not opposed to the concept of a timetable for discussions and the provision of suitable material. Indeed, we feel that sufficient time must be allowed and sufficient material provided if discussions are to be satisfactory. Nevertheless, we are not prepared to award general and detailed provisions such as those set out in the union claim.

We agree with, and are prepared to adopt the conclusions of the NLAC Guidelines, that “the arrangements may vary with regard to the type and extent of the change, or the needs of particular situations”, particularly as our decision extends beyond redundancy caused by technological change.

In these circumstances, we will make only a limited award prescription relating to the procedure to be adopted. This limited prescription is also based on the NLAC Guidelines.

We will provide:

“For the purposes of the discussion the employer shall as soon as practicable provide in writing to the employees concerned or their union or unions all relevant information about the proposed terminations including the reasons for the proposed terminations the number and categories of employees likely to be affected the number of workers normally employed and the period over which the terminations are likely to be carried out Provided that any employer shall not be required to disclose confidential information the disclosure of which would be inimical to its interests.”

[58] In its supplementary decision, 56 the Full Bench in relation to consultation about redundancy determined the appropriate clause to be adopted, was as follows:

“We consider that the following provisions would be suitable for inclusion in any award variation which may follow from our decision of 2 August 1984:

1. (a) Where an employer has made a definite decision that he/she no longer wishes the job the employee has been doing done by anyone and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment, the employer shall hold discussions with the employees directly affected and with their union or unions.

(b) The discussions shall take place as soon as is practicable after the employer has made a definite decision which will invoke the provision of clause (a) hereof and shall cover, inter alia, any reasons for the proposed terminations, measures to avoid or minimise the terminations and measures to mitigate any adverse effects of any terminations on the employees concerned.

(c) For the purposes of the discussion the employer shall, as soon as practicable, provide to the employees concerned and their union or unions, all relevant information about the proposed terminations including the reasons for the proposed terminations, the number and categories of employees likely to be affected, and the number of workers normally employed and the period over which the terminations are likely to be carried out. Provided that any employer shall not be required to disclose confidential information the disclosure of which would be inimical to its interests.

(d) This clause shall not apply to employers who employ less than 15 employees.”

[59] Subsequent to these decisions, these provisions became standard clauses in awards made by the Fair Work Commission (the Commission) and its predecessors. As well similar provisions were adopted to deal with the situation where there had been a definite decision to introduce major change.

[60] A Full Bench 57 of the Commission considered what the obligation to consult meant when it considered the amendments to be made to modern awards arising from the Fair Work Amendment Act 2013 which provided that all modern awards must include a term requiring employers to consult employees about a change to their regular roster or ordinary hours of work.

[61] As that decision said “the right to be consulted is a substantive right. It is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about the proposed change in order to seek to persuade the decision maker to adopt a different course of action.” 58

[62] It is clear from these decisions that one way the impact of the decision could be mitigated is if the employee is able to convince the employer through the discussion to “adopt a different course of action”. One way that may occur is if the employee provides information to the employer that causes it to reconsider the rationale of its decision.

[63] There was no challenge to Mr Dodos’ evidence that a definite decision was not made until 19 February 2014. Nor was there any challenge to Mr Dodos’ evidence about why he did not discuss this decision with Ms Zito until 24 February 2014. He relied upon Ms Frans’ absence from the workplace and on concerns about patient and business confidentiality.

[64] In this case, there was no discussion at the meeting as to why Mr Dodos had decided that Ms Zito’s position was no longer required. He provided her no information about his assessment that her work could be done by others within their allotted working hours.

[65] In this case I find that Mr Dodos did not provide Ms Zito with all the relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees.

[66] The notice of 31 January 2014 given to Ms Zito on 24 February 2014 did not fulfil this obligation and neither did the discussion that occurred at the meeting. Because Mr Dodos did not comply with his obligations to provide relevant information, Ms Zito was prevented from having any discussion with Mr Dodos that could have caused him to adopt a different course of action. She was denied the opportunity to have a discussion which may have, in the words of the clause, averted or mitigated the impact of the changes on her.

[67] I find therefore that Goulburn Valley did not comply with its obligations under the Award to consult with Ms Zito.

Could Ms Zito have been redeployed?

[68] Ms Zito submitted that she could have been redeployed to a CSO role. It was not in dispute that she had the capacity to perform this role. The issue to be determined is whether there was a vacant position at the relevant time and whether it would have been reasonable in all the circumstances to redeploy her to one of these positions.

[69] Mr Ritchie submitted that the casual CSO positions were not vacant. I do not agree. It is clear from Ms Frans that there were gaps in the customer services roster that she needed to fill. These gaps could be filled by Ms Zito or the casual employees who had been employed. Goulburn Valley was under no obligation to offer work to the casual employees who commenced work in February.

[70] However the positions that were available were casual positions. There is no evidence that there were any part time CSO positions available.

[71] Ms Zito did not give evidence that she would have been willing to, as an alternative to redundancy, accept a casual position which involved being required to attend work at a variety of locations or work at a lower rate of pay and with different hours of work.

[72] I am unable to conclude on the evidence before me that these casual roles were ones that it would have been reasonable in all the circumstances to redeploy Ms Zito to.

[73] Ms Zito also submitted that as Goulburn Valley knew another employee was going to leave she could have been redeployed into her position. However it is clear on the evidence that that employee’s position was not available at the time and in fact she did not resign for months. I do not consider that Goulburn Valley had an obligation to keep Ms Zito employed until such a vacancy arose.

[74] As there were no other positions available at the time, I find that it would not have been reasonable in all the circumstances to redeploy Ms Zito.

Conclusion

[75] As I have found Goulburn Valley did not comply with its obligations to consult Goulburn Valley’s objection to the application on the ground that this was a genuine redundancy is dismissed.

[76] In those circumstances, I am required to decide if the termination of employment was unfair.

[77] In UES (Int’l) Pty Ltd v Harvey 59 (UES), a Full Bench of the Commission discussed the approach to be taken when a dismissal was found not to be a genuine redundancy because of the failure to consult.

[78] In that case the Full Bench determined that sections 387(a), (b) and (c) of the Act are neutral considerations as the reason to dismiss was not related to the employee’s capacity or conduct.

[79] In this case Ms Zito submitted that she was selected for redundancy because she raised her workload concerns and because of personality clashes with another work colleagues. Some of these incidents occurred in 2012 and another in 2013. It was not put to Mr Dodos that Ms Zito was selected for redundancy for these reasons. There is no evidentiary basis on which I could conclude that the reason for the termination of Ms Zito’s employment related to her capacity or conduct and therefore consistent with the Full Bench in UES 60 these criteria are neutral.

Any unreasonable refusal by Goulburn Valley to allow Ms Zito to have a support person present to assist at any discussions relating to dismissal

[80] Ms Zito did not ask to have a support person present. This is unsurprising given she did not know the purpose of the meeting. Once she was told what the meeting was about she did not ask for the meeting to be adjourned to allow her to have a support person present. Ms Zito did ask at the end of the meeting if she could call her partner and she was allowed to do this.

If the dismissal related to unsatisfactory performance—whether Ms Zito had been warned about that unsatisfactory performance before the dismissal

[81] The dismissal did not relate to unsatisfactory performance so this criterion is neutral.

The degree to which the size of Goulburn Valley’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[82] This is not a small business. Goulburn Valley did not comply with its obligations to consult and given it received advice in relation to its obligations, the failure to consult weighs in favour of a finding that the dismissal was harsh, unjust and unreasonable.

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

[83] It was put that Goulburn Valley only had one human resources person. No evidence was called to support a finding that Ms Frans or Mr Dodos lacked experience in these matters. While it was submitted that this criteria was a neutral factor, I find its failure to consult, in circumstances where it had a human resources manager, weighs in favour of a finding that the dismissal was harsh, unjust an unreasonable.

Any other matters that the FWC considers relevant

[84] Ms Zito had worked for Goulburn Valley for a total of nearly 20 years though she had left for a year and then returned in 2002. There is no evidence that Goulburn Valley had regard to her length of service in making the decision to terminate Ms Zito’s employment.

[85] It may be said that Ms Zito could have raised matters at the meeting on 24 February 2014. However, Ms Zito was naturally upset at the news that her position was redundant and her employment was to be terminated that day albeit with pay in lieu of notice. Given the decision to pay her in lieu of notice she was not afforded an opportunity to think about what she had been told and to come to another meeting to discuss measures that may have been available to mitigate the effect of the decision on her. Even accepting the evidence of Mr Dodos that he did not want Ms Zito to return to work, there was nothing to prevent him from giving her notice of termination and advising that she was not required to perform work. She could have then met with Mr Dodos and Ms Frans again after she had regained her composure.

[86] Ms Zito had performed her work without complaint and she had no indication from Goulburn Health that she was not performing that work in a timely manner. At no time was she told that Mr Dodos had formed the view that she was taking too long to perform her work. Ms Zito was not consulted about the decision to make her position redundant. While she may not have been able to persuade Goulburn Valley to change its decision she was never given that opportunity.

[87] I consider that the failure to consult was unreasonable and I therefore conclude that the termination of Ms Zito’s employment was harsh, unjust or unreasonable.

Remedy

[88] Ms Zito is not seeking reinstatement of her employment.

[89] In assessing any amount in lieu of reinstatement, the Commission is required to have regard to the following:

The effect of the order on the viability of Goulburn Valley’s enterprise

[90] There were no submissions that any order would affect the viability of Goulburn Valley’s enterprise.

The length of Ms Zito’s service with the employer

[91] Ms Zito had worked for Goulburn Valley for 12 years and previously for 7 years. This is a substantial period of service and weighs in favour of an award of compensation.

The remuneration that Ms Zito would have received, or would have been likely to receive, if she had not been dismissed

[92] This is not situation where I can conclude that had the consultation occurred Ms Zito would have been able to alter Goulburn Valley’s decision. Therefore, I conclude that she would only have remained in employment, for at most, one week, during which she could have been provided with relevant information and the discussion mandated by the Award could have occurred.

The efforts of Ms Zito (if any) to mitigate the loss suffered because of the dismissal

[93] Ms Zito commenced looking for work one week after she was dismissed and commenced a new position on 24 March 2014.

The amount of any remuneration earned by Ms Zito from employment or other work during the period between the dismissal and the making of the order for compensation

[94] Given my decision this criterion is not relevant.

The amount of any income reasonably likely to be so earned by Ms Zito during the period between the making of the order for compensation and the actual compensation;

[95] Given my decision this criterion is not relevant.

Any other matter that the FWC considers relevant

[96] There are no other criteria that are relevant.

Conclusion

[97] Having found Ms Zito was unfairly dismissed I order that Goulburn Valley pay Ms Zito one weeks pay being $979.80 less appropriate taxation plus $93.08 to her superannuation fund within 21 days of the making of this order.

DEPUTY PRESIDENT

Appearances:

Mr D. Gagliardi for Ms Zito.

Mr M. Ritchie for Goulburn Valley Imaging T/A G.V.I Pty Ltd.

Hearing details:

2014.

Shepparton:

25 and 26 June.

 1   See s.389 of the Fair Work Act 2009.

 2   Ibid at s.385 of the Act.

 3   Exhibit R1 at [5]-[6].

 4   Ibid at [8].

 5   Ibid at [7].

 6   Transcript at PN 801.

 7   Ibid at PN 804-806.

 8   Ibid at PN 1048.

 9   Ibid at PN 973 - 974.

 10   Ibid at PN 975.

 11   Ibid at PN 979.

 12   Exhibit R1 at [9].

 13   Exhibit R2 at [6].

 14   Exhibit R1 at [10].

 15   Ibid at [10].

 16   Transcript at PN 679.

 17   Exhibit R2 at [7].

 18   Transcript at PN 717.

 19   Ibid at PN 715.

 20   Exhibit R1 at [10].

 21   Ibid at [12].

 22   Transcript at PN 1111.

 23   Exhibit R1 at [14].

 24   Exhibit R2 at [9].

 25   Exhibit R1 at [16] and R2 at [9].

 26   Exhibit R1 at [15]-[16].

 27   Transcript at PN 933.

 28   Ibid at PN 1734.

 29   Ibid at PN 1735.

 30   Exhibit R1 at [10].

 31   Transcript at PN 1752.

 32   Exhibit A1 at Item C.

 33   Transcript at PN 473-475.

 34   Ibid at PN 613.

 35   Ibid at PN 77.

 36   Ibid at PN 613.

 37   Ibid at PN 288.

 38   Ibid at PN 352.

 39   Exhibit A1.

 40   Ibid.

 41   Transcript at PN 884 - 890.

 42   Ibid at PN 900.

 43   Ibid at PN 901-903.

 44   Ibid at PN 1304 -1305.

 45   Ibid at PN 1324.

 46   Ibid at PN 1658.

 47   Ibid at PN 1718.

 48   Ibid at PN 1779-1780.

 49   [2013] FWCFB 8936.

 50   Ibid at [27].

 51   Transcript at PN 1802.

 52   Submissions of the Respondent at [22]-[25].

 53   S.576J(i)(j).

 54   [2008] AIRCFB 717 at [18].

 55   (1984) 8 IR 34 at 63-64.

 56   (1984) 9 IR 115.

 57   [2013] FWCFB 10165.

 58   Ibid at [31].

 59   [2012] FWCFB 5241.

 60   Ibid.

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