| FWC 1929
|FAIR WORK COMMISSION
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Bevege
Javelin Transport - Kevin Lambert & Paul Scott T/A Resource Management Group
DEPUTY PRESIDENT ASBURY
BRISBANE, 20 MARCH 2015
Application for relief from unfair dismissal - dismissal unfair - reinstatement not appropriate - discretion to award compensation not exercised on the basis that Applicant has not established a basis for compensation.
 This is the third Decision in relation to Mr Bevege’s application for unfair dismissal remedy. This Decision should be read in conjunction with my two previous decisions. 1
 A copy of the Decision of 12 March 2015 was sent to Mr Bevege in hardcopy on 12 March 2015. The Decision was sent via express post with a tracking number. The Australia Post website records that the mail item with the tracking number used for the Decision was delivered to Mr Bevege’s last known address on Friday, 13 March 2015. I note that the file reveals that Mr Bevege has not provided the Commission with an email address since the filing of his application, and no email address has been used for Mr Bevege previously. I also note that Mr Bevege has changed his address a number of times since the commencement of his application. On 24 April 2014 the Commission file records the following file note:
“[Telephone call] from Applicant. Applicant was querying whether a letter had been sent to his address. Asked if he meant the Directions, he did, advised they were sent on 9 April. Applicant advised of change of address and said he hadn't received them. Does not have access to email (personally or through a friend/family member). Advised I would send them to his new address (details updated in CMS) via express post today, and if he didn't receive them by Monday, he should contact the Commission asap.”
 Mr Bevege has not notified the Commission of any change of contact details since this time, and no correspondence sent following this has been returned to the Commission.
 In my Decision of 12 March 2015, after having found that Mr Bevege’s dismissal was harsh, unjust or unreasonable I stated:
“In the circumstances, the Commission provides the Applicant with one final chance to file material in relation to his specific earnings prior to his dismissal and after his dismissal. This material must be in the form of an affidavit and attach to it documentary evidence of any amounts that the Applicant declares as his earnings. This must include either payslips from the Respondent or the Applicant’s bank statements as well as any statements of benefit from Workcover and Centrelink. If the Applicant has earned any income through work, this must also be declared.
The Applicant is to file such material within seven days of the date of this decision. If the Applicant does not comply with this direction the Commission may find that the Applicant has failed to prove his case in relation to remedy and the application will be dismissed. The Commission is not blind to the difficulties that the Applicant has experienced in preparing his case but it is not for the Commission to build the Applicant’s case for him. The Commission must determine matters before it according to law on the basis of material placed before it.”
 No further material has been received from Mr Bevege in response. I also note, as discussed in my decision of 12 March 2015, that this is the third time that Mr Bevege has been directed to file evidentiary material in relation to his earnings.
 Section 390 of the Act provides:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC 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) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC 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.”
 Further to the findings in my previous Decision, I am satisfied that Mr Bevege was a person protected from unfair dismissal at the time of being dismissed and that he has been unfairly dismissed. Mr Bevege has made an application under s.394 of the Act.
 I am satisfied that an order for reinstatement of Mr Bevege is inappropriate on the basis of the material presently before the Commission. As far as the Commission is currently informed, Mr Bevege remains incapacitated for work. 2 Further, and as noted in my previous decision, Mr Bevege’s evidence regarding the way the Respondent, specifically Mr Lambert, treated him during his employment with the Respondent evidences what would be a clear difficulty in repairing the employment relationship.3 At the last Hearing in relation to this matter Mr Bevege also confirmed that reinstatement wasn’t possible and that he was seeking compensation.4
 I consider that an Order for the payment of compensation to Mr Bevege would be appropriate in the circumstances of this case, subject to what follows.
 Section 392 of the Act provides:
(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), the FWC 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 the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC 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 the FWC 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 the FWC 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.”
 Neither party has filed any evidence in relation to remedy, despite being provided a number of opportunities to do so. I accept that Mr Bevege has at least attempted to assist the Commission at the Hearing of 21 November 2014, but at that Hearing it was made clear to Mr Bevege that exact evidence was required in relation to his earnings, both pre and post dismissal, in order for the Commission to determine any amount of compensation.
 In the absence of any specific evidentiary material from the Applicant in relation to his earnings, Mr Bevege has failed to prove his case in relation to loss. Mr Bevege has also failed to establish his exact earnings prior to his dismissal
 An order for compensation is discretionary. Notwithstanding my finding that Mr Bevege’s dismissal was unfair, and that reinstatement is not appropriate, I am of the view that the discretion to award compensation should not be exercised in favour of Mr Bevege. Mr Bevege has failed to prove his case in relation to compensation or to file any specific evidentiary material on which the Commission could consider such an order. Mr Bevege has now been provided with a number of opportunities to do so. I am satisfied that he has had a sufficient opportunity to be heard in relation to the matter.
 An order dismissing the application will issue concurrently with this decision.
1 Bevege v Javelin Transport - Kevin Lambert & Paul Scott T/A Resource Management Group  FWC 268; Bevege v Javelin Transport - Kevin Lambert & Paul Scott T/A Resource Management Group  FWC 1471.
2 PN95; see also Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 .
3 Bevege v Javelin Transport - Kevin Lambert & Paul Scott T/A Resource Management Group  FWC 1471 at  to .
4 PN92 and PN102.
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