[2017] FWC 3692
The attached document replaces the document previously issued with the above code on 14 July 2017.
The replacement document makes minor typographical corrections and, at paragraph [60], replaces “21 days” with “14 days” to reflect the sealed Decision (PR594524) and sealed Order (PR594571) which issued to the parties on 14 July 2017.
Associate to McKenna
Dated 19 July 2017
| [2017] FWC 3692 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sebastien Mezino
v
Baia the Italian Pty Ltd T/A Baia THE ITALIAN
(U2017/4924)
COMMISSIONER MCKENNA |
SYDNEY, 14 JULY 2017 |
Application for an unfair dismissal remedy.
[1] For the reasons that follow, I have decided to determine this application on the papers and to make an order for an unfair dismissal remedy.
Procedural background
[2] On 8 May 2017, Sebastien Mezino (“the applicant”) made an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) in which he sought an unfair dismissal remedy. The applicant was formerly employed by Baia the Italian Pty Ltd t/a Baia THE ITALIAN (“the respondent”) as a restaurant manager.
[3] In accordance with the usual processes, Commission correspondence was sent to the respondent advising of various matters concerning the application. In this case, the Commission’s correspondence was sent on 10 May 2017 to the person nominated in the application form as the contact person for the respondent, namely, Markus Stauder. The correspondence was sent to a generic email address for the respondent, namely, “info@baiatheitalian.com.au”. The matter was also listed for conciliation, by telephone, before a Fair Work Commission conciliator, with a listing date of 1 June 2017.
[4] On 18 May 2017, emailed correspondence (from an unidentified person, but presumptively Mr Stauder) from the same generic email address for the respondent was sent to the Commission. That correspondence (as written) read:
“Apologies for the late reply. I am an employee of Baia THE ITALIAN however do not work for Baia the Italian pty ltd and have no authority over this company. Please make the correct adjustments on the documentation below without my name as I am no director of any of the companies and I will pass everything on to the head office. Thank you
Kindest regards
Baia THE ITALIAN
Ph. [number] Fax. [number]
[website address]”
[5] A file note dated 29 May 2017 indicates that a telephone call was made by a staff member of the Commission to the respondent. That note read:
“R: Called R [respondent] to chase up F3 [Employer’s Response] and confirm number for conciliation, R unavailable, left message for call back. Follow up email sent.”
[6] That same day, 29 May 2017, correspondence of a follow-up nature was sent by the Commission to Mr Stauder at what appears to be his own work-related email address relevantly noting that the conciliation was listed for 1 June 2017; seeking a contact number for the conciliation; and noting that a Form F3 – Employer’s Response to Application for Unfair Dismissal Remedy had not been received by the Commission.
[7] On 31 May 2017, Commission staff re-sent the original correspondence of 10 May 2017 to Mr Stauder, at what appears to be another of his own work-related email addresses.
[8] On 31 May 2017, emailed correspondence was sent by Mr Stauder to a Commission staff member which (as written) read:
“Hi [name]
As mentioned in the email last week. I DO NOT work for baia the Italian pty ltd, am not involved in any way with the company and have no authority over the company
Kindest regards
Markus Stauder
Restaurant Manager
Baia THE ITALIAN
Ph. [number] Fax. [number]
[website address]”
[9] A file note dated 31 May 2017 indicates that a telephone call was made by a staff member of the Commission to the respondent. That note read:
“R: Phoned respondent Markus Stauder on [telephone number] in regards to his email. [Name] advised that Markus Stauder is the General Manager of the restaurant and he’s the person I need to speak to. [Name] advised he will send a text to Mr Stauder and have him call the Fair Work Commission. If Mr Stauder is not the correct person to deal with the matter he needs to provide us the details of who the person is.”
[10] A further file note dated 1 June 2016 (the date of the listing of the conciliation, by telephone, before a Commission conciliator) read, in part:
“Rang Markus Stauder to connect him to conciliation. He confirmed that he has no authority to settle and that he doesn’t work for Baia the Italian and could not participate. I explained I would be sending out a letter to him about non participation and requested that he send on to the relevant person to deal with. He confirmed that I could send to his email address. …”
[11] On 1 June 2017, correspondence was sent by the Commission to Mr Stauder’s work-related email address, relevantly noting that the conciliation that had been listed that day “did not proceed because of the unavailability of the Respondent”. The correspondence further advised that if either party wished to have a further conciliation an emailed request should be made to the Commission in such respects. Moreover, the correspondence from the conciliator noted that, absent contact from either party, the application would be referred directly for arbitration before a member of the Commission. There was also a file note indicating that the applicant was requesting expedition due to his personal circumstances.
[12] On 14 June 2017, the application was allocated to me and, having noted the applicant’s request for expedition, I caused the following documentation to be issued:
[13] The documentation referred to above was emailed to the “The Proper Officer” of the respondent at the respondent’s generic email address.
[14] There was no appearance for the respondent at the Conference and/or Directions by telephone proceeding on 19 July 2017, although the applicant appeared in the proceeding from France. Given there was no appearance for the respondent, I confirmed the directions but noted I would give further consideration to matters if the respondent did not file and serve materials in accordance with the directions.
[15] The respondent did not file any materials pursuant to the directions and nor has any communication been made to my chambers by or on behalf of the respondent seeking any variation to those directions.
[16] For its own reasons, the respondent appears to have determined not to involve itself in the proceedings. No Form F3 Employer’s Response was filed; there was no appearance for the respondent in the conciliation by telephone before a Commission conciliator on 1 June 2017; there was no appearance for the respondent before me in the proceeding on 19 June 2017; and no materials were filed by the respondent pursuant to the directions. Given the history of matters, I have decided, in light of the respondent’s failure to file materials pursuant to the directions, to:
(a) vacate the extant direction concerning the applicant filing and serving reply materials by 19 July 2017, because nothing has been filed by the respondent in accordance with the directions to which the applicant would otherwise reply;
(b) vacate the hearing date that had been scheduled for 21 July 2017, as there is nothing in contest because no materials have been filed by the respondent; and
(c) determine the application on the papers, because there are no matters of contested fact (cf s.397 of the Act) given the respondent has failed to file any materials pursuant to the directions (following upon the respondent’s earlier failure to file a Form F3 Employer’s Response despite various endeavours by Commission staff seeking that the respondent attend to the requirement specified in rule 19 of the Fair Work Commission Rules 2013).
The applicant’s case
[17] The applicant was formerly employed by the respondent at a restaurant named “Baia THE ITALIAN”, located at Cockle Bay Wharf (which is part of the dining and entertainment precinct in Sydney’s Darling Harbour). The applicant was employed by the respondent in the period 12 November 2015 to on or about 21 or 23 April 2017. The applicant considered he was dismissed and that the dismissal was unfair - as he was de-rostered after he had raised complaints about underpayment. The applicant’s initiating process described matters in the following way:
“1) I did not receive any clear reasons for my non-appearance on the roster.
2) I did not receive any termination of employment notice.
3) I was not given any opportunities to reply or have someone assist me.
4) I was taken off the team instantly after presenting a situation of underpayment.”
[18] By way of background, the applicant commenced employment with the respondent as a floor supervisor. The applicant, whom I understand to be a French national, was informed by a friend who helped him get the job that the starting rates would be $20.00 an hour and that the respondent was willing to offer sponsorship visas to dedicated employees.
[19] After three weeks of employment with the respondent, the applicant and the restaurant’s general manager, Markus Stauder, “had a chat” regarding the applicant's “salary conditions”. The applicant expressed worries concerning the rate he was being paid; the applicant explained to Mr Stauder that in a former position as a waiter he was entitled to a higher rate.
[20] Mr Stauder indicated to the applicant he understood those concerns, but told the applicant it was very early in his employment to modify pay rates. Mr Stauder made a point of saying to the applicant, however, that the respondent could guarantee the applicant a larger number of hours a week and that, depending on performance, a promotion to a manager’s position was foreseen together with an offer of sponsorship. The applicant noted that, as it is “fairly difficult to enforce your position” when he was so new to the job, he took Mr Stauder at his word and kept committing himself fully to the restaurant’s interests.
[21] The applicant described what was entailed in the duties he undertook in his employment with the respondent as a floor supervisor. Several more weeks passed, but the applicant’s wages did not change, and he was sometimes working more than 50 hours a week. Nonetheless, the applicant was “happy” with the work arrangements as he wanted to prove to Mr Stauder and “the company” that he was “worth their investment” and, in such respects, “kept in mind” what Mr Stauder had earlier said to him.
[22] In January 2016, Mr Stauder put the applicant in charge of the establishment of recruiting procedures at the restaurant. The applicant felt very grateful for this opportunity as he was still a fairly new member of the organisation and also felt this development meant he was on track to becoming a manager; he considered this offer had a tremendous effect on his work rate by influencing his commitment to the restaurant. The applicant “felt part of the family” and it seemed to him that he was getting closer to his goal of becoming a manager. The applicant described the duties he undertook in his expanded recruitment role at the restaurant. The applicant considered that Mr Stauder seemed to enjoy the applicant’s commitment and their work relationship was flourishing – albeit there was no change in the applicant’s wages.
[23] In April 2016, the applicant began some managerial training. By the end of April 2016, the applicant was being rostered as a manager and was surprised that this promotion did not come with an upgrade in his wages. The applicant was still working “a great deal of hours”. Mr Stauder explained to the applicant that this promotion came with a probation period and he would evaluate the applicant’s position in the coming months.
[24] While the applicant was “a bit disappointed”, he kept his commitment to the respondent thinking that he was getting closer to an offer of sponsorship from the respondent. By June 2016, the applicant was performing a full range of managerial responsibilities as well as the recruitment-related duties. Mr Stauder mentioned “the sponsorship opportunity” around that time. Although the applicant’s pay rates still had not changed, the applicant accepted this situation because “personally it was a dream come true to be offered the opportunity to stay four years in Australia.”
[25] By November 2016, the size of the management team had reduced in number and Mr Stauder engaged with the applicant about signing an “offer letter” concerning sponsorship. The applicant signed the documentation, and the “restaurant's lawyer launched the application” for a 457 visa. The offer letter included an annual gross salary; the applicant asked Mr Stauder if this was the amount of pay to which he was now entitled. Mr Stauder responded that would be the case once the sponsorship was approved. Mr Stauder’s advice came as a “disappointment” to the applicant, as he thought he had done everything to deserve the salary. The applicant felt he could not object too much because of the offer of sponsorship. Nonetheless, the applicant “started to feel underpaid around that time” having regard to all his previous efforts and the new responsibilities he was handling. The applicant assumed Mr Stauder knew that he was “not really satisfied anymore” with his pay conditions. That is, the visa-related letter specifying the salary had been signed and the applicant was expecting Mr Stauder to “make it right to me after a year of employment”.
[26] Nothing of relevance occurred in the period November 2016 to March 2017. In March 2017, managers were given an employment agreement document which was designed to be given by them to every new staff member. That document referred to “an industry award”. The applicant, to that point in time, apparently was unaware of what an award is. For his own part, the applicant “looked it up” and it started to appear to the applicant that he was had been underpaid since the beginning of his employment. The applicant decided to research the amount of unpaid wages he was due.
[27] On 2 March 2017, the applicant suffered a non-work related injury and was given a hospital-issued medical certificate to cover absence from work for a week. The applicant resumed work even though he did not consider he was fully fit for reasons including “to sustain myself” in circumstances where Mr Stauder informed the applicant he was not entitled any form of sick leave or paid holidays. After two weeks, the applicant “had to go back” to Mr Stauder to let him know that he “could not keep going in those conditions”. The applicant asked again about sick leave or paid holidays; Mr Stauder repeated to the applicant that he did not accumulate any leave as the sponsorship was not yet approved. According to the applicant this “really raised my worries”.
[28] After an absence from work for 11 days, the applicant had a meeting on 19 April 2017 with Mr Stauder to advise he was ready to resume work. The applicant also presented the results of research he had undertaken regarding wages and “my feeling of being underpaid.” The applicant recounted matters concerning what unfolded in that meeting in the following way:
“[A]t the presentation of those results [Mr Stauder’s] attitude was to me very deplorable since he stated that he would pass along the information I gave him to our restaurant owner who according to him would simply cancel my visa application and fire me. When I mentioned contact with Fair Work Ombudsman [Mr Stauder] told me to go ahead as he clearly stated that ‘this company has never been caught by Fair Work’.”
[29] That same day, 19 April 2017, the applicant sent correspondence to Mr Stauder attaching several pages of calculations in support of an underpayment of wages claim in the amount of $25,124.40. That correspondence read:
“Dear Markus
Further to our discussion today I noted you advised you would be passing my correspondence to the restaurant owner Nick. Please find attached correspondence which sets out the basis of my claim.
Regards
Sebastien Mezino”
[30] The correspondence that the applicant attached was, I apprehend, prepared with the assistance of someone whose first language is English and who also had some capability/ knowledge concerning how to set-out the several pages of schedules identifying the basis of the applicant’s underpayment claim. The letter itself read:
“Attn: Mr Markus Stauder
General Manager
Baia the Italian Pty Ltd
[Address]
By Email: [email address]
Dear Markus
Re: Underpayment of Sebastien Mezino
I refer to the above and my employment with Baia the Italian (Baia).
As you are aware, I commenced employment with Baia on 12/11/2015 in the position of Floor Supervisor.
I was remunerated in the amount of $20.00 per hour, and did not receive any allowances in respect of overtime, penalty rates or other loadings.
Having reviewed the provisions of the Restaurant Industry Award 2010 (Award), I am of the view that I was engaged as a casual employee, at the Level of Food and beverage attendant grade 3 at the commencement of my employment until 24/04/2016 (The casual employment).
On or about 25/04/2016, I was promoted to the position of Restaurant Manager. Having regard to the provisions of the Award, I am of the view that I became a permanent employee from this date (The permanent employment).
I have calculated my entitlements with reference to the Award and I note that I have been underpaid during the total period of my employment.
I have calculated the underpayment during the casual employment period as amounting to $11,010.83 and the underpayment during the permanent employment period as amounting to $14,113.57.
The total amount therefore due and owing to me is $25,124.40. Please note that this calculation does not include the amount I would be entitled to claim in regards of annual leave and personal leave.
I have largely based my calculations on the rosters which show my scheduled hours for each week. In circumstances where I do not have a copy of a roster for a particular week and in circumstances where I did not receive payslips from Baia, I have calculated those weeks as an average amount having regard to my usual and consistent work patterns.
I request that Baia make payment to me of the full amount owing to me, being $25,124.40, within 14 days from the date of this letter.
I look forward to resolving this matter between us as expeditiously as possible.
Yours faithfully,
Sebastien Mezino”
[31] On 20 April 2017, the day after the meeting with Mr Stauder and the correspondence concerning the wages claim, the applicant was removed from a work-specific Facebook group conversation (which was a management tool used for publication of daily reports, issue reporting and meeting scheduling). A Facebook screenshot reads, in part: “Markus Stauda [sic] removed you from this group”. After his removal from that Facebook group, the applicant became aware that an announcement had been made on it that he was leaving the restaurant (a management team member read the message aloud to the applicant). The announcement the applicant was leaving the restaurant was, as the applicant put matters, “despite me not giving my resignation nor receiving a termination notice.”
[32] The applicant presented at the workplace on 21 April 2017. The applicant located Mr Stauder in the restaurant. A short conversation ensued. The applicant asked Mr Stauder “the simple question”, namely “Am I still employed or fired?” and Mr Stauder answered: “I do not know.” The applicant was “shocked” and asked to see the roster, but Mr Stauder replied he could not take the responsibility to allow that. Mr Stauder provided the applicant with the email address of one of the owners for him “to converse with”.
[33] The applicant never received a response to his correspondence of 19 April 2017 concerning the alleged underpayments. The applicant “disappeared from the roster” after the weekend ending Sunday, 23 April 2017; that is, his name is omitted completely from the roster commencing Monday, 24 April 2017. Within about a week, the applicant also received emailed advice from the respondent’s solicitor, Michael McCrudden (Accredited Specialist, Immigration Law) of Michael McCrudden Solicitors Pty Limited, which read:
“I will now notify the Department of Immigration that I am no longer acting in this matter. I expect the Department will contact your [sic] directly in relation to the case going forward.”
Preliminary matters
[34] Section 396 of the Act requires that certain matters be decided before considering the merits of the application. As to those matters I find: the application was made within time; the applicant was a person protected from unfair dismissal; there was nothing to suggest the respondent was a small business (on the contrary, roster sheets in the applicant’s materials record the names of comfortably more than 15 employees) so consideration of the Small Business Fair Dismissal Code does not arise; and there was nothing to suggest the dismissal involved a case of genuine redundancy. Moreover, I am also satisfied the applicant was, within the meaning of s.386(1)(a) of the Act, dismissed.
Criteria for considering harshness etc
[35] Section 387 of the Act specifies the matters to be taken into account in considering whether a dismissal was harsh, unjust or unreasonable. I turn now to consider these matters, noting that there was no material before me as to matters the respondent may otherwise have advanced concerning the matters addressed in the applicant’s case.
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)
[36] There is nothing to indicate there was a valid reason for the dismissal of the applicant which related to his capacity or conduct.
Whether the person was notified of that reason
[37] The applicant was not notified of the reason for his dismissal. As the applicant noted in the initiating process in the response to the question “What were the reasons for the dismissal, if any, given by your employer?”:
“None but:
I was removed from the restaurant manager’s Facebook chat on 20/04/17. Therefore could not attend the meeting on 21/04/17. I did not appear on the next roster (23/04/17) and considered myself dismissed. These events followed the presentation of an underpayment situation by me on 19/04/17.”
Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[38] The applicant was not given any opportunity to respond to any reason for the dismissal.
Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[39] There were no discussions with the applicant related to the dismissal and, hence, questions concerning allowing a support person do not arise.
If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
[40] The dismissal did not relate to unsatisfactory performance, so questions concerning prior warnings do not arise.
The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[41] There was no evidence about the size of the respondent’s enterprise (other than the evidence of the rosters indicating the respondent is not a small business) relevantly as it concerns any impact that size may have had on the procedures followed in effecting the dismissal.
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
[42] There was no evidence as to what level of dedicated human resource management specialists or expertise, if any, the respondent had and, thereby, nothing as to the likely impact of such matters on the procedures followed in effecting the dismissal.
Any other matters the Commission considers relevant
[43] Mr Stauder mentioned matters about visa sponsorship early in the employment, and later in the employment; and the applicant accepted the low wages/underpayment of wages for a long time because “personally it was a dream come true to be offered the opportunity to stay four years in Australia” under sponsorship from the respondent.
[44] Matters were laid bare for the applicant in the meeting on 19 April 2017 with Mr Stauder when the applicant presented the results of his research regarding wages. That is, Mr Stauder stated the restaurant owner would simply cancel his visa application and fire him; and, when the applicant then mentioned the Fair Work Ombudsman, Mr Stauder told him to “go ahead” as “this company has never been caught by Fair Work.”
[45] I conclude the dismissal was squarely related to the applicant asserting entitlement to be paid at least his minimum lawful entitlements and/or seeking to be paid what was set out as being the pay in the 457 visa-related “offer letter” rather than the flat $20.00 an hour the respondent paid the applicant throughout the period of employment. This was in circumstances where the applicant was vulnerable, given the respondent was, while underpaying the applicant, holding-out to the applicant that it would sponsor him in relation to a 457 visa (which it eventually was in the process of undertaking through its solicitors until the applicant asserted entitlement to proper wages).
[46] I am satisfied the dismissal was harsh, and unjust, and unreasonable. I would add it was also behaviour of the shabbiest type for this employer to use its 457 visa-related leverage concerning potential work-related sponsorship in the course of underpaying an employee - and then to peremptorily dismiss the employee when he sought to assert entitlement to proper pay and conditions under the relevant award and the National Employment Standards, and/or in accordance with the salary recorded in the signed documentation concerning the visa “offer letter”.
Remedy
[47] I am satisfied the applicant was unfairly dismissed and should have an order for in his favour for an unfair dismissal remedy. Reinstatement was not sought by the applicant (and would be inappropriate as the applicant no longer resides in Australia given he cannot work here without sponsorship). I might add it is unclear to me on what basis (i.e. visa-type arrangements) the applicant was employed by the respondent over the course of his employment from November 2015 to the dismissal in April 2017, as there was nothing before me in such respects other than that, around November 2016, documents were signed and “the restaurant’s lawyers launched the application for a 457 visa”.
[48] I consider an order for payment of compensation is appropriate in all the circumstances of the case in lieu of reinstatement. The applicant put matters this way concerning the outcome he was seeking:
“I am seeking financial compensation for the period I would have worked if the dismissal did not occur. As the company had the intent of sponsoring me (457 visa pending) it can be estimated over 6 months. Without working rights I cannot find another employment [in Australia] anymore”
[49] In determining an amount for the purposes of an order for compensation, the Commission must take into account all the circumstances of the case including certain specified matters to which I now turn. I again note the paucity of material as to matters that otherwise arise for consideration under the Act, in circumstances where the respondent did not file anything pursuant to the directions.
The effect of the order on the viability of the employer’s enterprise
[50] There was no evidence as to the effect an order for compensation would have on the viability of the respondent’s enterprise.
The length of the person’s service with the employer
[51] The applicant was employed by the respondent in the period 12 November 2015 to late-April 2017.
The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[52] If the applicant had not been dismissed (for raising issue about underpayment of wages) he would have received, or would have been likely to receive, a minimum of a sub-award rate of $20.00 an hour for the full-time hours, overtime hours, and hours worked on weekends and public holidays that he had received throughout the period of his employment with the respondent. The schedules to the underpayment claim suggest that, as of March 2017, the applicant should have been receiving an average of approximately $1,148.48 a week. But for the applicant raising the issue of entitlement to proper pay and conditions, it might otherwise have been expected that the employment relationship would, subject to visa-related matters, have continued for an indefinite period of time in circumstances where the applicant was considered a sufficiently valued employee that the respondent was taking steps, through its solicitors, concerning visa sponsorship; and, for his own part, the applicant was hoping to stay in Australia while working under visa sponsorship arrangements with the respondent for “four years”.
The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
[53] The applicant was unable to work/mitigate his losses in employment in Australia once his employment with the respondent terminated, and he otherwise had no other sponsor or potential sponsor. The applicant has taken the significant step of leaving Australia to return to France, where he can be employed, so as to mitigate the loss he suffered because of the dismissal. Self-evidently, the applicant has himself been put to cost as a result of travel and relocation-related expense in the step taken to mitigate his loss.
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 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
[54] It appears the applicant did not earn/was unable to earn any remuneration, given his visa status, following the termination of his employment with the respondent and prior to departing Australia so as to relocate to a country where he can obtain employment. File notes of a conversation between the applicant and a Commission staff member indicate the applicant was still residing in Australia as at 1 June 2016; it was noted that the applicant had stated he was in a “difficult position” as he had “no working rights in Australia” and “an uncertain financial future” in connection with seeking to have his application dealt with urgently. The applicant appears to have been a capable, hard-working, managerial-material employee. As such, I would hope, trust and expect the applicant has obtained a new position upon his return to France following his regrettable experience in an Australian workplace including underpayment of wages and unfair dismissal, albeit there is nothing specific before me as to the remuneration within the meaning of s.392(2)(e) and likely income within the meaning of s.392(2)(f) of the Act.
Any other matter the Commission considers relevant
[55] The amount of compensation of course has to be considered in the context of the statutory criteria and the authorities. In this regard, I note the comments in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Allan Humphries [2016] FWCFB 7206 at [16] (which was cited with approval in Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Nurcombe [2017] FWCFB 429 at [42]):
“[16] The well-established approach to the assessment of compensation under s.392 of the FW Act, taking into account the matters specified in s.392(2), is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c) - that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:
“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’
[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”
[17] The identification of this starting point amount “necessarily involves assessments as to future events that will often be problematic”. Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.” (footnotes omitted; my underlining)
[56] While I have considered the statutory criteria and the principles discussed in the authorities, I also note there are atypical aspects to this case which do not lend themselves to, or indeed reasonably allow, the strict application of the usual formulations and considerations concerning compensation orders. For example, the applicant was receiving a flat hourly rate of $20.00 and was apparently working an average of 45 hours a week in a period approximating a year prior to the dismissal. As such, referencing an order to, for example, a number of weeks of wages is problematic given the seemingly self-evident underpayment of a person who was employed in a managerial role in a restaurant.
[57] It would be a perverse outcome if some of the usual considerations were just formulaically applied, given the distortions which would result. For instance, consideration of the applicant’s pre-dismissal earnings in relation to matters such as remuneration the applicant would have received, or would have been likely to receive, here have to be considered in the context that the applicant was being paid sub-award rates – and, presumptively, the applicant would have continued to receive sub-award rates in circumstances where it was his claim for proper pay which itself triggered the dismissal. It is also unclear whether there has been a loss of non-transferable credits, for it is unascertainable on what is before me whether the applicant’s employment at the time of the dismissal was as a casual employee or as a permanent employee – given he was being paid an amount which was below both the relevant minimum casual rate of pay and the rate of pay that a permanent employee would have been paid. Moreover, absent a replacement sponsor, the applicant was unable to be employed in Australia following the dismissal and has had to involve himself in the costs and exigencies associated with no less a step than leaving Australia to relocate to another country where he may be employed so as to be able to seek to mitigate his losses.
[58] Against the background of the raft of atypical factors and the absence of any material from the respondent concerning matters which usually arise, and having regard to what I consider was an egregiously unfair dismissal of an employee who sought no more than to be paid properly and then lost his job (and, separately, had his sponsorship application evaporate), I have determined in the exercise of discretion, having regard to all the circumstances as to what is before me and a consideration of the statutory criteria and authorities, that the applicant should have a compensation order in the amount of $15,000.00 as an unfair dismissal remedy.
[59] In determining that an amount of $15,000.00 is appropriate having regard to all the circumstances of the case for a compensation order, there is no cause to reduce the amount on account of misconduct and the amount does not contain any component for shock, distress or humiliation, or other analogous hurt, caused to the applicant by the manner of the dismissal. Further, and for the avoidance of doubt, the compensation amount does not contain (and nor could it) any component designed to address any aspect of the applicant’s underpayment of wages claim set out in his correspondence to the respondent of 19 April 2017. Any such claim may continue to be progressed by the applicant through appropriate channels should he so choose.
Conclusion
[60] Given my conclusions, an order issues in conjunction with this decision that the respondent pay to the applicant an amount of $15,000.00 within 14 days.
[61] The proceedings are concluded.
COMMISSIONER
Hearing details: On the papers.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR594524>