DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Gosling
v
Marine Manning Services Pty Ltd
(U2017/4893)

Application for an unfair dismissal remedy.

[1] On 5 May 2017, Mr William Gosling (Mr Gosling) filed an application pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Marine Manning Services Pty Ltd (MMS).

[2] On 19 April and 8 May 2017, Mr Dean Stewart (Mr Stewart) and Mr Kai Gracie (Mr Gracie) (respectively), filed applications alleging that they were also unfairly dismissed by MMS.

[3] On 8 May 2017, Mr Stewart, Mr Gosling and Mr Gracie (Applicants) requested that all three applications (Applications) be dealt with jointly by the FWC.

[4] On 28 April and 16 May 2017, MMS lodged Form F3 Employer Responses to the Applications which included a jurisdictional objection. MMS asserts that the terminations were cases of genuine redundancy (Jurisdictional Objection).

[5] On 1 June 2017, the matter went to conciliation before a FWC staff conciliator but the issues in dispute remained unresolved.

[6] Mr Gracie, represented by the Maritime Union of Australia (MUA), and Mr Glenn Hawes (Mr Hawes) of MMS, represented by Strategic Human Resources (SHR), subsequently attended a conciliation conference before me on 3 August 2017. However, the Applications could not be resolved by conciliation.

[7] The Applications were therefore listed for hearing and determination. Taking into account the parties’ circumstances, and their wishes, it was determined that a hearing rather than a determinative conference would be the most effective and efficient way to determine the matter.

[8] Directions for the filing of materials by the parties were issued on 28 August 2017 (Directions). The Directions required the parties to jointly prepare and file in the FWC a Statement of Agreed and Contested Facts no later than close of business, Thursday 7 September 2017.

[9] The Directions also required MMS to file in the FWC, and serve on the Applicants, by close of business, Thursday 21 September 2017 its submissions and evidence in support of its Jurisdictional Objection and the merits of the Applications.

[10] The Directions required the Applicants to file in the FWC, and serve on MMS, their materials by close of business, Thursday 5 October 2017.

[11] On 8 September 2017, SHR sought an extension on behalf of MMS to file the Statement of Agreed and Contested Facts. An extension was granted until 13 September 2017. However, the parties were advised that the remaining filing dates had not been extended, and they were required to comply with them.

[12] On 13 September 2017, a Statement of Agreed and Contested Facts was filed on behalf of MMS by SHR, noting that the agreed facts had been confirmed with the MUA.

[13] On 20 September 2017, SHR advised that they were no longer acting for MMS in relation to the Applications.

[14] MMS failed to file its submissions and evidence due on 21 September 2017. MMS was granted an extension to file its materials to 26 September 2017. No materials were filed by MMS by this date.

[15] On 27 September 2017, in light of MMS’s failure to file its submissions, the Applicants were directed to file their submissions and evidence in relation to the merits of the Applications by close of business, 5 October 2017. MMS was granted a further extension to file MMS’s submissions and evidence in relation to merit by 12 October 2017.

[16] On 3 October 2017, Mr Hawes on behalf of MMS sought a further extension to file MMS’s materials. A fourth extension was granted until 19 October 2017.

[17] On 5 October 2017, the MUA sought an extension for the Applicants to file their materials, which was granted. The Applicants’ submissions and witness statements in relation to the Jurisdictional Objection were received on 9 October 2017.

[18] No submissions or evidence was filed by MMS by the date of the hearing on 17 November 2017.

[19] The Applications were heard on 17 November 2017 (Hearing). The Applicants were represented at the Hearing by the MUA. No representatives of MMS were present in the hearing room at the listed time. Mr Hawes was telephoned shortly after the commencement of the hearing by my Associate. A message was left to contact Chambers, but no response was received. The hearing proceeded in the absence of MMS.

[20] At the hearing, the MUA made oral submissions in relation to the Jurisdictional Objection. In the absence of submissions in relation to merit from any party, the parties were advised that further directions would be issued (Further Directions).

[21] The Further Directions required the Applicants to file submissions in relation to the merits of the Applications, along with submissions addressing remedy by 24 November 2017. MMS was invited to file submissions in response by 30 November 2017.

[22] No submissions were received by MMS by this date, nor has any further correspondence been received from MMS as at the date of this decision.

Background

[23] On 13 September 2017, SHR filed a Statement of Agreed and Contested Facts on behalf of MMS. The Statement of Agreed and Contested Facts is unsigned and undated. The MUA, on behalf of the Applicants, conceded that the following facts were accurate:

a. Mr Gosling commenced his employment with MMS on 8 May 2014 in the position of Deckhand. 1

b. The terms and conditions of Mr Gosling’s employment are those set out in the Seawest Port Services - Pilbara AMOU & MUA Inshore Enterprise Agreement 2012 (Agreement). 2

c. At a meeting held on 4 April 2017, Mr Gosling was advised that his position was redundant. At that meeting, Mr Gosling was provided with a letter dated 3 April 2017 informing him that the contract to supply a vessel to Intertek would cease effective from 30 April 2017. 3

d. Mr Gosling was sent an email on 13 April 2017 which advised that the effective date of his termination was 1 May 2017. 4

e. There were no alternative roles to which Mr Gosling could be redeployed. 5

[24] SHR asserted among the Contested Facts that Mr Gosling’s employing entity was Seawest International Pty Ltd trading as Seawest Port Services (Seawest) not MMS. No evidence has been tendered in support of this assertion.

[25] In his signed and dated witness statement, Mr Gosling says that MMS is related to Seawest and that both companies are owned and run by Mr Hawes. An Australian Securities and Investments Commission (ASIC) search reveals that the sole Director and Company Secretary of Seawest is Mr Hawes. Mr Hawes is the sole Director, Company Secretary and shareholder of one of the two companies which are joint shareholders in Seawest. At the time of Mr Gosling’s dismissal, Mr Hawes was the sole Director, the Company Secretary and the only shareholder of MMS.

[26] According to Mr Gosling, he has been variously employed by both entities. 6 His group certificates identified MMS as his employer at the end of each financial year.7

[27] Given the lack of any evidence from MMS proving it is not the employer of Mr Gosling, I have preferred Mr Gosling’s evidence that MMS was his employer at the time he was dismissed. If it were not and Seawest is at law Mr Gracie’s employer, I would have allowed the amendment of the Application to make Seawest the Respondent, given that Seawest were on notice of this matter, given Mr Hawes’ involvement throughout the proceedings.

Is Mr Gosling protected from unfair dismissal?

[28] The MUA submits that Mr Gosling was unfairly dismissed and seeks an Order that he be compensated two weeks’ pay being $4,737.60 gross, plus superannuation of $450.01.

[29] An order for compensation may only be issued if Mr Gosling was protected from unfair dismissal at the time of the dismissal.

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[30] There is no dispute, and I am satisfied, that Mr Gosling has completed the minimum employment period, and that an enterprise agreement applied to his employment. Consequently, I am satisfied Mr Gosling was protected from unfair dismissal.

Was Mr Gosling’s dismissal unfair?

[31] Section 385 of the FW Act sets out the circumstances in which a dismissal will be considered unfair:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[32] It is not contested that Mr Gosling was dismissed, and it is not asserted that the Small Business Fair Dismissal Code applied to Mr Gosling’s dismissal.

Was Mr Gosling’s dismissal a genuine redundancy?

[33] MMS submits that the Application should be dismissed because the dismissal was a case of genuine redundancy. Section 389 of the FW Act defines the meaning of genuine redundancy:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[34] The MUA concede that MMS no longer required Mr Gosling’s job to be performed by anyone because of changes in the operational requirements of MMS, in particular the termination of the contract to supply a draft survey vessel to Intertek which took effect on 30 April 2017. 8

[35] The MUA acknowledged it bore the onus of proving that it would have been reasonable in all the circumstances for Mr Gosling to be redeployed within MMS or an associated entity. The MUA conceded did not have evidence to establish this and, therefore, did not contest the issue of whether Mr Gosling could have been redeployed within MMS or an associated entity. 9

[36] However, the MUA disputes MMS’s assertion that it complied with the consultation obligations contained in clauses 11 and 26 of the Agreement.

[37] Clause 11.1 of the Agreement relevantly provides:

“In the event that the Company makes a decision likely to have a significant effect on employment arrangements, it will discuss those changes with the Employees as soon as reasonably practicable. Where the decision will result in an Employee's position being made redundant, the Company will advise them and take steps to try and avoid their retrenchment.”

[38] Clause 26 of the Agreement provides:

“26 Consultation for Major Change

26.1. The Company will consult with employees to whom this agreement applies of any decision to introduce major change when the Company has made a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise the change is likely to have a significant effect on employees of the enterprise.

26.2. A major change is likely to have a significant effect on employees if it results in:

26.2.1. the termination of the employment of employees; or

26.2.2. major change to the composition, operation or size of the Company's workforce or to the skills required of Employees; or

26.2.3. the elimination or diminution of job opportunities (including opportunities for promotion or tenure); or

26.2.4. the alteration of hours of work; or

26.2.5. the need to retrain employees; or

26.2.6. the need to relocate employees to another workplace; or

26.2.7. the restructuring of jobs.

26.3. The Employees may appoint a representative for the purposes of consultation.

26.4. The Company is not required to disclose confidential or commercially sensitive information to the relevant employees or their appointed representative.

26.5. The Company will give genuine consideration to any matters raised about the major change by the Employees.”

[39] Clause 11 imposes an obligation on MMS not only to give notice of change, but to consult with the purpose of trying to take steps to avoid the retrenchment of employees. Clause 26.5 imposes an obligation on MMS to give consideration to the matters raised by employees about a major change. Both clauses contemplate consultation about a decision to introduce change occurring before the decision to terminate the employee’s employment is made.

[40] The obligations contained in clause 11 and 26 are obligations to consult, not obligations to simply give notice. The obligation to give notice differs significantly from the obligation to consult. Unlike the obligation to give notice, the obligation to consult does not simply entail advising an employee of what is to happen. Consultation requires that the employee concerned is provided with a bono fide opportunity to influence the decision maker.

[41] In the Form F3 Employer Response and in the Contested Facts set out in the Summary of Agreed and Contested Facts, MMS asserts that consultation with Mr Gosling occurred in the months prior to March 2017. 10 Mr Gosling denies this.11 MMS did not file any witness statements or lead any oral evidence at the Hearing in support of this assertion.

[42] Mr Gosling’s evidence was that, on 4 April 2017, he was advised that he was being made redundant and he was given a letter dated 3 April 2017 advising him that his employment would be terminated.

[43] On 5 April 2017, Mr Gosling contacted MMS to confirm the date of his termination. He received an email in response on 13 April 2017, stating that his termination was effective as of 1 May 2017. MMS elected not to cross-examine Mr Gosling.

[44] There is therefore no evidence before me that Mr Gosling was consulted before the decision to terminate his employment was made, that he had an opportunity to raise any matters about the change with MMS, or that MMS gave consideration to any matters that he raised if, in fact, Mr Gosling did so.

[45] In light of the above, I am not satisfied that MMS complied with the requirement to consult with Mr Gosling about the redundancy prior to dismissing him.

[46] Consequently, I find that Mr Gosling’s dismissal was not a case of genuine redundancy within the meaning of section 389 of the FW Act.

Was Mr Gosling’s dismissal harsh, unjust or unreasonable?

[47] Having been satisfied of each of subsections 385(a), (c) and (d) of the FW Act, it is necessary to determine whether Mr Gosling’s dismissal was harsh, unjust or unreasonable. The criteria to be taken into account when assessing whether his dismissal was harsh, unjust or unreasonable are set out at section 387 of the FW Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person— whether the person had been warned about that unsatisfactory performance before the dismissal; and

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

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[48] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[49] To determine whether Mr Gosling’s dismissal was, in the circumstances, harsh, unjust or unreasonable, it is necessary to consider each of the criteria set out in section 387 of the FW Act.

Did MMS have a valid reason for dismissing Mr Gosling? (s.387(a))

[50] An employer must have a valid reason for the dismissal of an employee protected from unfair dismissal, although it need not be the reason given to the employee at the time of the dismissal.¹² The reasons should be ‘sound, defensible and well founded’¹³ and should not be ‘capricious, fanciful, spiteful or prejudiced.’¹⁴ The reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. The requirement to be reasonable must be applied in a practical common sense way to ensure that the employer and employee are each treated fairly.¹⁵

[51] It is uncontested that the reason for Mr Gosling’s dismissal was that the contract for the provision of the vessel on which he was employed was terminated, and he could not be redeployed elsewhere within MMS or a related entity. I am satisfied that this was a sound, defensible and well-founded reason for his dismissal based on the operational requirements of MMS’s business. 16

[52] However, the reasons for Mr Gosling’s dismissal were not related to Mr Gosling’s capacity or his conduct. Accordingly, I am unable to find that there was a valid reason for his dismissal related to his performance or conduct. In the circumstances, I have regarded this as a neutral factor in my consideration as to whether Mr Gosling’s dismissal was harsh, unjust or unreasonable. 17

Was Mr Gosling notified of the reason for his dismissal? (s.387(b))

[53] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,¹⁸ in explicit terms,¹⁹ and in plain and clear terms.²⁰ In Crozier v Palazzo Corporation Pty Ltd,²¹ a Full Bench of the Australian Industrial Relations Commission, dealing with a similar provision of the Workplace Relations Act 1996 (Cth), stated that:

“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”²²

[54] The MUA conceded that Mr Gosling was notified of the reason for his dismissal, namely that he was to be dismissed because he was redundant, before his dismissal took effect. 23 However, the reason given to him did not relate to his capacity or conduct and I therefore regard this as a neutral factor.24

Was Mr Gosling given an opportunity to respond? (s.387(c))

[55] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.²⁵

[56] Mr Gosling’s evidence was that, on 4 April 2017, he was advised that he was being made redundant. He was given a letter dated 3 April 2017 advising him that his employment would be terminated. 26 Mr Gosling denies that he was given an opportunity to respond to the reason for his dismissal.27 MMS did not file any witness statements or lead any oral evidence at the Hearing to the contrary. MMS elected not to cross-examine Mr Gosling. There is no evidence before me that Mr Gosling was given an opportunity to respond to the reason for his dismissal.

[57] The reason given to Mr Gracie for his dismissal did not relate to his capacity or conduct so even if he had been provided with an opportunity to respond it would not have related to his capacity or conduct and therefore could not have satisfied section 387(c) of the FW Act. I have therefore regarded this factor as neutral.²⁸

Was Mr Gosling unreasonably refused a support person? (s.387(d))

[58] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present. There is no positive obligation on an employer to offer an employee the opportunity to have a support person.²⁹

[59] There is no evidence before me that Mr Gosling was unreasonably refused the opportunity to have a support person present to assist in discussions relation to his dismissal.

[60] I therefore find MMS did not unreasonably refuse to allow Mr Gosling to have a support person present at discussions relating to the dismissal.

Was Mr Gosling given warnings regarding his unsatisfactory performance? ( s.387(e))

[61] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct.³⁰

[62] MMS dismissed Mr Gosling because he was redundant. MMS did not rely on Mr Gosling’s work performance as ground or reason for his dismissal. This factor is therefore neutral.

What is the impact of the size of the respondent on procedures followed and the presence or absence of dedicated human resources management specialist/expertise on the procedures followed? (s.387(f) and s.387(g))

[63] The MUA concede that MMS is small company without dedicated human resource management expertise. However, the MUA submit that this does not excuse a failure to consult in accordance with an enterprise agreement negotiated by those people with oversight of the redundancy process. 31

[64] MMS have not lead any evidence to suggest that its size or lack of dedicated human resource management expertise impacted on the process followed for Mr Gosling’s dismissal.

[65] Without evidence to the contrary, I am satisfied that the size of MMS and the absence of dedicated human resource management expertise did not impact on the process followed to effect Mr Gosling’s dismissal.

Are there any other relevant matters? (s.387(h))

[66] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I have given consideration to the failure by MMS to meet the requirements for a genuine redundancy for the purposes of section 389 of the FW Act, in particular MMS’s failure to discharge the consultation obligations contained in the Agreement. 32 In the circumstances, I consider the failure by MMS to consult with Mr Gosling in accordance with the terms of the enterprise specific agreement was unreasonable.

[67] The obligations contained in clause 11 and 26 are obligations to consult, not obligations to simply give notice. Unlike the obligation to give notice, the obligation to consult does not simply entail advising an employee of what is to happen. Consultation requires that the employee concerned is provided with a bono fide opportunity to influence the decision maker.³³ There is no evidence that Mr Gracie was given such an opportunity.

[68] The consultation obligations were contained in an enterprise agreement of a small enterprise. The Agreement is relatively short and is written in plain English. Given the lack of human resource expertise, it is likely that those with the oversight of the redundancy process also had oversight of the negotiation of the Agreement and if not could have easily familiarised themselves with its terms. To simply ignore the agreed terms of an enterprise agreement without consequence squanders the concessions made to acquire those entitlements and protections, and makes those entitlements and protections illusory.

[69] In the circumstances, I consider the failure by MMS to consult with Mr Gracie in accordance with the terms of the enterprise specific agreement was unreasonable.

Conclusion

[70] Having considered each of the matters specified in section 387, notwithstanding that there were valid reasons for his dismissal, I am satisfied that the failure by MMS to consult with Mr Gosling caused the dismissal of Mr Gosling to be unreasonable. Accordingly, I find Mr Gosling’s dismissal was unfair.

Remedy

[71] Mr Gosling seeks an Order that he be compensated two weeks’ pay being $4,737.60, plus superannuation of $450.01.

[72] Section 390 of the FW Act sets out the circumstances in which an order for reinstatement or compensation may be made:

“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.”

[73] I am satisfied Mr Gosling was protected from unfair dismissal pursuant to section 382 of the FW Act and that he was dismissed unfairly.

Is an Order for reinstatement appropriate?

[74] Reinstatement is the FW Act’s primary remedy for unfair dismissal and must be ordered if sought unless the FWC is satisfied on proper grounds that reinstatement is not appropriate. In DP World Sydney Limited v Lambley [2013] FWCFB 9230 at [138], the Full Bench of the FWC said:

“The language of s.390 makes the position pellucidly clear. The Commission “must” order reinstatement unless reinstatement of the person is inappropriate.”

[75] Mr Gosling does not seek reinstatement. In light of my findings that Mr Gosling’s role was redundant and he could not be redeployed elsewhere in MMS or any related entity, I am satisfied that reinstatement is not appropriate.

Is an Order for compensation appropriate?

[76] Section 390(3)(b) provides an order for compensation can only be made if such an Order is appropriate in all the circumstances.

[77] Mr Gosling seeks an Order that he be compensated two weeks’ pay being $4,737.60, plus superannuation of $450.01. The MUA concede that, in light of the operational requirements of MMS and the lack of redeployment opportunities, it was unlikely that Mr Gosling’s employment would have extended beyond the period it which it might reasonably have taken MMS to discharge its consultation obligations imposed by the Agreement.

[78] If MMS had consulted with Mr Gosling in accordance with the Agreement, then on the evidence in this case, his dismissal would have been a genuine redundancy within the meaning of section 398 of the FW Act. There is no evidence before me to suggest that this consultation would have taken any less than two weeks or yielded a result other than his dismissal. 34

[79] I am satisfied that an order for compensation is appropriate in all the circumstances of this case.

[80] Section 392 of the FW Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered:

“392 Remedy—compensation

Compensation

(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.

Compensation cap

(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.”

[81] Having considered the above criteria and in light of the following, I am satisfied that an order for $4,737.60 gross, less taxation required by law, plus superannuation of $450.01 compensation is appropriate (Order).

[82] Mr Gosling’s remuneration at the time of his dismissal was $123,177.00 per annum. 35 Mr Gosling had been employed by MMS for three years at the time of his dismissal. Such a period provides no basis for reducing the amount to be ordered to be paid to him.

[83] I have not found any misconduct by Mr Gosling that contributed to the dismissal.

[84] There is no evidence before me that the Order would affect the viability of MMS.

[85] Mr Gosling has provided evidence that he has made reasonable efforts to mitigate the loss suffered by him because of his dismissal. His mitigation efforts do not provide a basis for reducing the amount to be ordered to be paid to him.

[86] The amount of compensation ordered does not exceed the compensation cap.

Conclusion

[87] I am satisfied that Mr Gosling was protected from unfair dismissal, that the dismissal was unfair, and that a remedy of compensation is appropriate in the amount of $4,737.60, less taxation required by law, plus superannuation of $450.01.

[88] An order to this effect (PR599180) will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

L Edmonds for the applicant.

Hearing details:

2017.

Perth:

November 17.

Final written submissions:

Applicant, 27 November 2017.

 1   Exhibit A1 and Exhibit A3 at [4].

 2   Transcript at PN101-102.

 3   Exhibit A1 and Exhibit A3 at [6].

 4   Exhibit A1 and Exhibit A3 at [8].

 5   Transcript at PN34.

 6   Exhibit A3 at [2].

 7   Exhibit A3 at [2]; PAYG Payment Summary for the year ending 30 June 2016 of Mr Gosling.

 8   Transcript at PN33.

 9   Transcript at PN34.

 10   Exhibit A1 at [4]-[7].

 11   Exhibit A3 at [9].

12 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373 and 377-378.

13 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.

14 Ibid.

15 Ibid.

 16   UES (Int’l) v Leevan Harvey [2012] FWAFB 5241 at [33].

 17   Ibid at [42].

18 Chubb Security Australia Pty Ltd v Thomas (Print S2679) at [41].

19 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151.

20 Previsic v Australian Quarantine Inspection Services (Print Q3730).

21 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137.

22 Ibid at 151.

 23   Submissions for the Applicant on Merit filed 24 November 2017 at [7].

 24   UES (Int’l) v Leevan Harvey [2012] FWAFB 5241 at [43]

25 RMIT v Asher (2010) 194 IR 1 at 14-15.

 26   Exhibit A3 at [6].

 27   Ibid at [9].

28 UES (Int’l) v Leevan Harvey [2012] FWAFB 5241 at [43].

29 Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542].

30 Annetta v Ansett Australia Ltd (2000) 98 IR 233 at 237.

 31   Submissions for the Applicant on Merit filed 24 November 2017 at [12]-[13].

 32   UES (Int’l) v Leevan Harvey [2012] FWAFB 5241 at [27].

33 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited [2010] FCA 591 at [40]-[45].

 34   Ibid at [35].

 35   Witness Statement of William Gosling dated 27 November 2017 at [3].

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