DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Keith Hills
v
Lobethal Nominees Pty Ltd
(U2019/186)

Application for an unfair dismissal remedy – casual employee – regular and systematic employment – no valid reason – no procedural fairness – compensation ordered

[1] Mr Keith Hills (the Applicant) has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Lobethal Nominees Pty Ltd trading as GE Hughes Construction (Hughes Construction or ‘the employer’). He claims to have been unfairly dismissed on 4 January 2019. At the date of dismissal he was employed as a casual mechanic and auto-electrician. He had worked at Hughes Construction for almost twenty-one months.

[2] Mr Hills claims that his dismissal was harsh, unjust or unreasonable. He seeks compensation and a Statement of Service.

[3] Hughes Construction is a building and construction business employing approximately 130 persons. It operates from Lobethal in the Adelaide Hills, and conducts business throughout South Australia and nationally.

[4] Hughes Construction opposes the application. It says that Mr Hills was a casual employee employed by the hour who was told on 4 January 2019 that he was no longer required and was not thereafter rostered. Whilst agreeing that Mr Hills was dismissed in that sense, it contends that its dismissal was not harsh, unjust or unreasonable; and that no issue of remedy arises.

[5] No jurisdictional issues arise in determining the application.

[6] I am satisfied that Mr Hills was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. Mr Hills served the minimum employment period required by section 383(a) of at least six months service. All of Mr Hills’s service as a casual employee should be counted for that purpose. The evidence before me clearly establishes that Mr Hills was employed on a regular and systematic basis and that he had a reasonable expectation of continuing employment on that basis (section 384(2)(a)). His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act.

[7] The application was filed within the statutorily required 21 days after dismissal.

[8] On 13 February 2019 conciliation of the application was conducted by a Commission-appointed conciliator. It did not settle. It was referred to me for hearing and determination.

[9] I issued directions in the matter on 7 March 2019. I conducted a procedural hearing on 18 April 2019 following which I made an order that Mr Hills produce payslips concerning his post dismissal employment. 1 In advance of the hearing, and consistent with my directions and orders, I received witness statements, documents and materials in reply from both Mr Hills and the employer.

[10] I heard the matter by determinative conference on 29 April 2019. I reserved my decision, which I now deliver.

[11] Both parties were self-represented although the employer had the assistance of external solicitors in advance of the proceedings.

[12] The evidence before me was both oral and documentary.

[13] At the hearing Mr Hills gave evidence in support of his claim. The employer called its Transport Manager Mr David Kretschmer, who also conducted the employer’s case.

[14] Mr Hills’s evidence was carefully presented. He had good recall of specific facts. He made concessions where appropriate, and did not embellish his evidence or his case. He was a credible witness and his evidence can be relied upon.

[15] Mr Kretschmer also presented his evidence honestly though it was only in response to questions from myself that a fuller picture of the employer’s actions emerged.

[16] There is a self-evident dispute over the fairness of the employer’s decision and the manner in which it was implemented. However, given the concessions made by Mr Kretschmer in answer to my questions, there are few factual disputes. By and large Mr Hills’s evidence accurately sets out the events that occurred. Where it is necessary to make findings of fact on disputed evidence I prefer Mr Hills’s evidence.

[17] I make this decision based on all of the oral and documentary evidence before me.

The Facts

[18] Mr Hills is a trade qualified auto-electrician. He also has approximately 20 years of experience as a mechanic (but is not trade qualified).

[19] Hughes Construction has need for a pool of mechanics and auto-electricians to maintain its transport fleet and perform maintenance of other business assets. It employs a small number of employees for that purpose, including an apprentice.

[20] Hughes Construction employs its non-salary employees (including mechanics and auto-electricians) as casual employees under the GE Hughes Construction Co Building and Construction Workers and Transport Workers Enterprise Agreement 2017 2 (the Agreement). Even where casual employees work full-time hours, they are engaged and paid as casuals.

[21] The employer considers that it has a right under the Agreement to work its casual employees between 40 and 50 hours per week. Apart from Mr Hills, the casuals were full-time employees working five or six days per week.

[22] Mr Hills started working for Hughes Construction on 17 April 2017. He was sought out for his skills and employed by its owner, Duane Hughes. Mr Hughes agreed to employ Mr Hills as a casual employee and, at Mr Hills’s request, generally working only three days per week of ten hours per day.

[23] Mr Hills made it clear to Mr Hughes at the time he was first employed that he did not intend to work full-time. His reasons were twofold: he wanted more time with his family; and he wanted flexibility to perform contract work for friends and family in his own private business Hilly’s Auto-Electrical, which he had established as a side interest (and had registered an ABN). Although he came to Hughes Construction from a previous managerial role (at Thomas Foods), in discussions with Mr Hughes, he turned down the potential of being appointed as the workshop manager (a full-time role) preferring to be a three day a week casual and working ‘on the tools’ rather than in management. Mr Hughes asked Mr Hills to nonetheless observe the way the workshop was operating and provide feedback to him on suggestions for improvement.

[24] The employer and Mr Hills signed an Individual Flexibility Agreement (IFA) on 7 July 2017. 3 That Agreement purported to be made under clause 1.8 of the Agreement. It purported to allow Mr Hills to vary his working hours or days of work and work additional ordinary hours. When so varied, it purported to allow the employer to not pay overtime or penalty rates that would otherwise apply under the Agreement for those varied or additional hours. The evidence of both Mr Hills and the employer was that they both considered the IFA to be of mutual benefit. Only where necessary for the purposes of this decision do I refer to the IFA. I note that the IFA purports that it operates provided “you are better off by entering into it”. I make no assessment on whether this IFA rendered Mr Hills better off or was otherwise valid. I note only that both parties regarded it as a binding agreement between themselves from 7 July 2017 until the date of dismissal.

[25] At relevant times, Mr Hills reported to the workshop manager Mr Wells who in turn reported to the Transport Manager Mr Kretschmer. Mr Hills had a good relationship with Mr Wells but an occasionally testy relationship with Mr Kretschmer.

[26] Mr Hills had an effective relationship with Mr Hughes. After about six months of employment, Mr Hills provided feedback, as requested. That feedback, in part was about the need for more robust safety and licensing procedures and in part about some aspects of Mr Kretschmer’s management that he considered deficient.

[27] Mr Wells was in charge of rostering workshop employees, including Mr Hills. Staff would learn of their forward roster in the week prior.

[28] In evidence before me is a summary of Mr Hills’s time sheets for the period he worked at Hughes Construction. 4 Allowing for a handful of weeks when he was on authorised unpaid absence (‘leave’) he worked on 82 of 90 consecutive weeks. He generally worked three days per week, Tuesday, Wednesday and Thursday. The average number of hours worked were 30.95 hours per week.

[29] Occasionally the days of the week worked would vary, and occasionally four or (very rarely) one, two or five days would be worked. I accept Mr Hills’s evidence that these variations would occur by agreement with the employer and were rostered and known by the employer in advance. Where more than 30 hours per week were worked, it was usually at the employer’s request due to periods of higher work demand. Where less than 30 hours were worked it was due to one of two reasons: either Mr Hills’s unavailability (such as family commitments) or a slow-down in demand. Where there was a slow-down in demand, Mr Hills was agreeable to working fewer weekly hours so as to enable other (younger) mechanics not have their hours or income reduced.

[30] This arrangement concerning Mr Hills’s working arrangements continued unaltered until Friday 4 January 2019.

[31] Mr Hills had the previous week (Christmas / New Year) off work, with the employer’s authorisation (although the business had continued to operate). On his first week back he was rostered three days, Wednesday 2 January, Thursday 3 January and Friday 4 January. He worked on 2 and 3 January without incident.

[32] On Friday 4 January he started at 10am. He was rostered until 6pm. At approximately 430pm Mr Kretschmer walked into the workshop and approached Mr Hills on the shop floor. A very brief conversation occurred:

MR KRETSCHMER: Keith, due to your lack of working hours we will be letting you go and hiring someone else that can work full-time.

MR HILLS: When does that mean you are finishing me up?

MR KRETSCHMER: You finish at the end of your roster today.

[33] Mr Kretschmer then walked off.

[34] Mr Hills was taken aback but did not protest to Mr Kretschmer. He says he wanted to avoid an argument on the shop floor in earshot of the younger mechanics. Mr Hills approached Mr Wells. He told him what had occurred. Mr Wells told Mr Hills that he (Mr Wells) was surprised and didn’t know why the decision had been made. Mr Hills debriefed Mr Wells on the jobs he was working on, and what needed to be done once he was gone.

[35] Mr Hills worked the remaining ninety minutes of his shift, said his good-bye’s and left.

[36] He received no notice beyond the remaining ninety minutes of his shift (which he worked) and no payment in lieu. He received no written termination letter or explanation. He received no Statement of Service. He was paid until the end of his rostered shift on 4 January, and no more.

[37] He went home and told his wife that he’d lost his job. He also told his wife ‘that’s the end of the house’. This was a reference to the fact that Mr Hills and his wife had recently entered into a contract for the purchase of a house but that contract was subject to finance.

[38] As a casual employee, Mr Hills had had trouble securing housing finance. Despite a letter of support from Hughes Construction in July 2018 5, Mr Hills had been knocked back for a housing loan (by NAB) on the ground he was a casual employee. In October 2018 the employer provided a further certificate of income to another financial institution (HomeStart Finance) which certified that Mr Hills’s employment was “likely to continue at the same amount on a regular and ongoing basis”.6 In January 2019 Mr Hills was progressing a separate (and second) loan application with HomeStart for the new purchase. On 2 January he had asked the payroll department to provide a fresh certificate of income. They agreed to do so; but by the time of his dismissal he had not received the same. Without a job, he believed he would be unable to secure housing finance.

[39] In the days following his dismissal, Mr Hills considered that he had been unfairly treated. He was angry that the owner, Mr Hughes, had not spoken to him or forewarned him. He thought about contacting Mr Hughes but decided against that course because he had lost confidence in him. Instead, he decided to issue these proceedings, which he did on 7 January.

[40] Mr Hills took prompt steps to find alternate work. He spoke to at least two local businesses but neither needed an auto-electrician. He also spoke to the owner of Enviro Scrap Metal, who knew of him. About two weeks later the owner of Enviro Scrap Metal communicated back to Mr Hills. They met, and Mr Hills was offered a full-time job in a managerial role as auto-electrician. He commenced on 29 January 2019. Mr Hills took a full-time role largely because he considered that it would assist his attempt to secure housing finance.

[41] At the time of dismissal, Mr Hills was paid $34 per hour as a casual employee plus 9.5% superannuation (no paid leave).

[42] At Enviro Scrap Metal Mr Hills is employed on $32 per hour plus paid annual and personal leave (and 9.5% superannuation). He has less travel time to and from work.

[43] In the twenty-four day period 5 January to 28 January (inclusive) between jobs, Mr Hills was unemployed. With a family to support, he sold a number of farming assets (tractor and farming equipment) to maintain an income stream and pay bills. These were sold at a fair market price ($1,250) to Wrights Tractors. Mr Hills decided not to pay more bills on his personal credit card fearing a higher credit card debt could compromise his home finance application.

[44] It is also relevant to note that at the date of dismissal Mr Hills was no longer operating his private business Hilly’s Auto-Electrical. In fact, (and unknown to Hughes Construction) Mr Hills’s had not traded that business for over a year. In mid-2018 due to inactivity he did not renew its ABN. Having secured employment with Enviro Scrap Metal in a timely manner, after dismissal Mr Hills did not reactivate the business or its ABN, but says that he may do so at some future time.

Consideration

[45] I am satisfied that Mr Hills was “dismissed” within the meaning of the FW Act notwithstanding being a casual employee. 7 He was regularly and systematically employed even though engaged and paid as a casual. He worked 82 of 90 continuous weeks. He had notice of rosters in advance and had a reasonable expectation of such rosters continuing and providing him work of about three days a week (30 hours). He had a job from which he could be dismissed, and was dismissed; that being as a regularly employed casual mechanic and auto-electrician working under the terms of his common law contract of employment, the Agreement and his IFA. Whilst employed by the hour, the conduct of the parties leads me to conclude that there was a reasonable expectation of ongoing employment on both sides: on his side that he would be provided work generally on the agreed basis (that is, on the terms of his agreement with Mr Hughes), and on the employer’s side that he would make himself available to work generally on that agreed basis. There was a decision to dismiss him from that agreed work arrangement and that decision was implemented.

[46] The employer relies on clause 3.1.3 of the Agreement to submit that Mr Hills was not dismissed. It provides (under the heading “Casual Employment”):

“There is no obligation on the Company to provide the Employee work, regardless of the employee’s length of service or regularity of engagement.”

[47] This provision does not disturb the conclusion that there was a reasonable expectation of ongoing employment on both sides. It needs to be read in the context of each common law employment arrangement that sits around it. Clause 3.1.3 also needs to be read in context of the IFA Mr Hills entered into under the Agreement. The IFA of 7 July 2017 required four weeks’ notice by either side of its termination (that is, the termination of flexible working arrangements outside of the Agreement terms). Requiring four weeks’ notice to terminate its terms sits inconsistently with the proposition that, in Mr Hill’s case, there was no agreement for ongoing employment beyond the last hour worked.

[48] Nor does clause 3.1.6 of the Agreement, which permits termination of a casual employee on one hour’s notice, assist the employer in the context of this case. The fact that legally required minimum notice of dismissal is given (whether to a casual employee, a part time employee or a full time employee) is not an answer to an unfair dismissal claim, let alone a jurisdictional barrier to making such a claim.

[49] Having been dismissed, I am required to consider whether Mr Hills’s dismissal was unfair (in the sense of being “harsh, unjust or unreasonable”) having regard to the considerations in section 387 of the FW Act.

Valid reason (section 387(a))

[50] The purported reason for Mr Hills’s dismissal was, in Mr Kretschmer’s words on 4 January, “due to your lack of working hours” and the decision to hire “a full time employee”. This remained the employer’s position at the hearing.

[51] For a number of reasons I am not satisfied that this was a valid reason for dismissal.

[52] Firstly, there is no evidence that Mr Hills was responsible for a “lack of working hours” or not working enough hours. Every roster Mr Hills worked was set by the employer. Only on rare occasions did he render himself unable to work three days per week. When he did so, the employer agreed to his request, including his request that he not work Christmas/New Year week in 2018.

[53] Secondly, it is immaterial that other mechanics were five or six day casuals. Mr Hills was employed on a different basis, one expressly agreed with the owner, Mr Hughes that he be a three day per week casual. Mr Hills honoured that part of the bargain.

[54] Thirdly, the employer entered into an IFA with Mr Hills in which it agreed to permit Mr Hills to “work additional ordinary hours” (without penalty rates or overtime) and to have “flexibility in arrangement of work hours to meet family commitments”. 8 It was inconsistent for the employer to have agreed to provide Mr Hills that flexibility but to then dismiss him for a lack of working hours or not working enough hours.

[55] Fourthly, the employer did not employ a full-time employee to replace Mr Hills, as suggested by Mr Kretschmer on 4 January. The evidence is that no replacement mechanic or auto-electrician was employed. Rather, Mr Wells was required to spend more time on the tools, and the employer employed a full-time Operations Manager for the workshop. This was an administrative task, not a task working on the tools. Mr Hills was not notified of that position being created, nor offered a chance to bid for it.

[56] I simply need to determine whether there was a valid reason for dismissal, and not speculate on other reasons. I have found that the reason advanced on the day of dismissal and at the hearing was groundless.

[57] I note that in the employer’s formal response to the Commission (F3) filed under the hand of its solicitor on 31 January 2019 that it asserts, as a reason for dismissal: 9

“The Applicant owns and operates his own private business, which business was becoming increasingly inflexible such that the Applicant would refuse shifts or not turn up for all confirmed shifts.”

[58] Both limbs of this proposition are entirely unjustified assertions completely unsupported by the evidence, whether it is the employer’s evidence or that given by Mr Hills. The uncontroverted fact is that Mr Hills had not operated his business for about a year prior to dismissal. Mr Kretschmer, at the hearing, conceded that he was mistaken in believing that the business was still operating and simply assumed that it was. He took no steps to ascertain from Mr Hills if that was so, but was party to a decision to dismiss based on an incorrect premise. Further, the evidence clearly establishes that there was no occasion in the course of his employment where Mr Hills was rostered to work but failed to turn up for work or notify the employer of his unavailability.

[59] There was no occasion where Mr Hills was spoken to by the employer and refused to agree or negotiate a mutually acceptable roster for the following week or weeks.

[60] There was no occasion where Mr Hills was advised by the employer that working three days per week (as distinct from the five or six days worked by others) presented a problem or concern for the employer.

[61] I do not speculate what the real reason for dismissal was, if there was one. None other was advanced by the employer at the hearing. There was no particular incident that precipitated the employer’s decision. Mr Kretschmer inferred that another mechanic didn’t like Mr Hills, but did not press this as a reason. Mr Hills postulates that Mr Kretschmer had a personal dislike for him because he believed that his feedback to Mr Hughes (critical of Mr Kretschmer) had filtered down to Mr Kretschmer. Mr Kretschmer accepted that there was some personal tension but denied he knew of this feedback.

[62] The evidence simply leads me to conclude that Mr Hills was dismissed because the employer decided that Mr Hills was no longer useful to the business and that it would and, being a casual, that it could.

[63] There was no valid reason for dismissal.

Notification of the reason for dismissal (section 387(b))

[64] I find that Mr Hills was notified of a reason for his dismissal in the unexpected and extraordinarily brief discussion with Mr Kretschmer on the shop floor on 4 January 2019. Beyond this, there was no explanation of the employer’s decision and it was never confirmed in writing.

Opportunity to respond (section 387(c))

[65] The notification of dismissal on 4 January was abrupt and without notice or opportunity to respond.

[66] Nor was there an opportunity to put a contrary view to the decision-makers or to correct false premises they were operating under. The evidence of Mr Kretschmer was that in the month before dismissal he and Mr Hughes had discussed the workshop and had formed a view that Mr Hills should go. They brought Mr Wells into this discussion and he was similarly informed. Weeks went by but Mr Hills was never spoken to. Mr Kretschmer wanted to give effect to the decision by the end of the first week Mr Hills returned after Christmas. On the day of dismissal Mr Kretschmer knew one of his tasks was to dismiss Mr Hills but waited until 430pm because that was when he ‘got around to it’.

[67] Aside from there being no valid reason, the dismissal lacked any semblance of procedural fairness. The employer did not consider putting in place a fair procedure (in the sense of an opportunity to respond) because it didn’t believe that it needed a procedure, fair or unfair. As Mr Hills was a casual, the employer believed it could dismiss him on an hour’s notice without reason, explanation or debate. The employer was indifferent to the fact that Mr Hills had been in its continuous service for two years, had a family to support and was in the midst of trying to secure finance for a home he had purchased.

Opportunity for support person (section 387(d))

[68] The employer did not refuse Mr Hills a support person, reasonably or unreasonably. There was no opportunity created by the employer in which a support person could have been sought or accompanied Mr Hills, as he was not given an opportunity to respond prior to a decision to dismiss being made or communicated.

Warnings concerning performance (section 387(e))

[69] The employer did not counsel, warn or otherwise alert Mr Hills that there was any operational or other problem with his working hours, whether it was the days or number of days he was working, or whether it was the length of days worked or weekly number of hours worked. If the proposition advanced by Mr Kretschmer at dismissal (an alleged lack of working hours by Mr Hills) was a real one, it would have been more likely than not that a business would raise that issue with its employee before dismissing them. Not doing so was unreasonable. Mr Hills had not shown an indifference to the hours sought to be worked or rostered by the employer.

[70] Nor was Mr Hills cautioned, warned or spoken to about any deficiencies in the quality of his workmanship or his interaction with management or other employees. He did have disagreements from time to time mainly with Mr Kretschmer although generally speaking their relationship was civil. He accepted in his evidence that he could be argumentative on operational issues if the need arose, for example a disagreement he had with Mr Kretschmer in 2018 about the preconditions he needed in order to certify camera installations. There was no evidence before me that these were anything other than instances of a licensed and experienced tradesman holding his ground in discussions with management in the course of business.

Size of employer’s enterprise (section 387(f)) and human resource capability (section 387(g))

[71] Hughes Construction is not a small business. It operates in industries (building and transport) that are the subject of regular industrial and regulatory scrutiny. It has and requires systems to deal with these issues, including human resources. In part, Mr Hills was brought into the business to improve the efficiency of its workshop operations and provide feedback on compliance with systems of regulation by those working ‘on the tools’.

[72] There is no particular reason why the size or capability of the employer would or did explain or mitigate its failure to provide either a valid reason for dismissal or procedural fairness to Mr Hills.

Other matters (section 387(h))

[73] There are no other matters on the evidence that I need to take into specific account.

Conclusion

[74] Taking into account all of the relevant factors arising from the consideration of sections 387(a) to (h) of the FW Act I find that Mr Hills’s dismissal was harsh, unjust and unreasonable.

Remedy

[75] Mr Hills seeks compensation and a Statement of Service.

[76] I consider that reinstatement would be inappropriate given the breakdown in Mr Hills’s relationship with Mr Kretschmer, his loss of confidence in Mr Hughes and the new job he has secured at Enviro Scrap Metal.

[77] The employer submits that Mr Hills has “landed on his feet” by securing a new job closer to home, and that no compensation should be paid because it’s a better job for him. It also submits that the overall package of remuneration earned by Mr Hills in the new job is superior to that at Hughes Construction, and that this difference should be deducted from any loss of earnings in the period between dismissal and securing the new job. For reasons that follow, I reject both of these propositions.

[78] I consider it appropriate, given my findings, that an award of compensation be made.

[79] Section 392 of the FW Act provides as follows:

“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.”

[80] I now consider each of the criteria in section 392 of the FW Act.

Viability: section 392(2)(a)

[81] This is a medium sized enterprise. There is no evidence before me to suggest that a compensation order of the quantum I have decided would materially affect the viability of Hughes Construction.

Length of service: section (section 392(2)(b))

[82] Mr Hills had worked for Hughes Construction for just over one year and eight months.

Remuneration that would have been received: section 392(2)(c)

[83] Had he not been dismissed on 4 January 2019 Mr Hills employment would likely have been ongoing, albeit on a casual basis. There is no evidence before me that business demand for work by mechanics and auto-electricians on trucks and equipment was trending downwards. Work intensity fluctuated but was ongoing. Given the regularity of his employment, and the systematic nature in which he was rostered, Mr Hills could reasonably have expected to work an average of 30.95 (say 31) hours per week. Looking ahead, he would have reasonably been looking at working in the business for at least another three months, if not more. His own business had been mothballed, he was experienced and capable and his immediate manager (Mr Wells) had no apparent problem with him.

[84] I take into account that Mr Hills was a casual employee and that under clause 3.1.3 of the Agreement there was no obligation on the employer’s part to provide ongoing work. Whilst relevant to an order for compensation, this is not a complete answer given the manner in which both the employer and Mr Hills gave effect to his casual employment. Mr Hills was not called in at short notice when needed. He was not a gap-filler on a roster that needed gaps to be filled. He was regularly rostered largely predictable periods across three week days. This was consistent with the agreement he reached from day one with Mr Hughes. Given the practice of this business to employ non-salaried staff as casuals, he was no less a fixture in its labour force than other five or six day per week casuals.

[85] I find that there was a reasonable expectation of continuing employment of at least three months.

Mitigating efforts: section 392(2)(d)

[86] Mr Hills made prompt and effective efforts to find employment following his dismissal. He secured work with Enviro Scrap Metal from 29 January 2019.

Remuneration earned: section 392(2)(e)

[87] Mr Hills’s remuneration with Enviro Scrap Metal is as a full-time employee. His hourly rate of pay is lesser, but with leave entitlements attributable to full-time employment, his package is slightly superior. He also has less travel time and cost to and from work.

[88] I am satisfied that the earnings by Mr Hills at Enviro Scrap Metal should be fully taken into account (and discounted) in calculating the compensation to be paid.

[89] However, the employer’s submission that because Mr Hills secured a job at a higher package then this higher rate of earning should be deducted from his economic loss between jobs is risible. Such an approach would be wrong in principle and grossly unfair. Employees should have incentive to better themselves, even from the disappointment of having been dismissed. Further, an employer that unfairly dismisses an employee should not have its obligations reduced by the perseverance and capability of the employee to secure good and better working conditions. In any event, the economic loss sustained by an employee in the period of their unemployment (in this case, $34 per hour income to a zero income) is the same, irrespective of the income they earn once unemployment ceases.

Income likely to be earned: section 392(2)(f)

[90] Given that the period for which compensation will be ordered does not extend into the future, this consideration does not arise.

Other matters: section 392(2)(g)

[91] Mr Hills submits that I should take into account the fact that, in order to maintain an income stream in the weeks following dismissal, he sold certain personal assets (tractor and farm machinery).

[92] I do not consider it appropriate to do so, for two reasons. Firstly, the decision to sell assets was a decision made by Mr Hills. Whilst it arose indirectly as a consequence of the employer’s decision to dismiss it is remote from that decision in the sense that Mr Hills weighed up multiple factors in making that decision. Secondly, Mr Hills secured fair market value for the sale. In so doing, he liquidated an asset (a depreciating one at that) but secured a return for that asset. In an immediate sense at least he was no worse off.

[93] I will however take into account that Mr Hills has taken a day of paid annual leave from his new job in order to attend the hearing, give his evidence and present his case.

[94] There are no other matters or contingencies that need to be provided for.

Misconduct: section 392(3)

[95] Section 392(3) of the FW Act requires the amount of compensation that would have been ordered under section 392(1) be reduced by an appropriate amount on account of contributory misconduct.

[96] I have found no misconduct on the part of Mr Hills, and none was alleged.

Shock, Distress: section 392(4)

[97] I note that the amount of compensation allowable by the statute does not include a component for shock, humiliation or distress. Nor does it include any basis for punitive damages. Mr Hills submitted that there should be some element of example-setting taken into account given the abruptness of his dismissal, its lack of merit and the upset it has caused him and his family. There is no statutory basis on which these factors can reasonably be the subject of a compensation order.

Compensation cap: section 392(5)

[98] The amount of compensation I will order does not exceed the six-month compensation cap.

Payment by instalments: section 393

[99] Given the amount I will order is small, I will provide 14 days for the employer to give effect to my order. In these circumstances, no order for payment by instalments will be made.

Conclusion

[100] Mr Hills sought an order for a Statement of Service. I consider it reasonable that Hughes Construction do so, given the request that has been made and the future utility such a Statement may have for Mr Hills. However, the Commission’s powers under Part 3-2 of the FW Act are limited to orders for reinstatement or compensation (with ancillary orders relating thereto). I have no power to so order, and do not do so.

[101] Having regard to the above factors, the compensation order will generally be limited to the period of economic loss between the date of dismissal and the date Mr Hills commenced employment with Enviro Scrap Metal. Taking into account that no notice was given to Mr Hills, that he has used a day of annual leave to prosecute his claim and the overall circumstances of his dismissal, I consider that compensation for a four week period is appropriate at 31 hours per week and at the rate of pay (plus superannuation) Mr Hills earned at dismissal.

[102] This equates to 124 hours (31 hours per week x four weeks) at $34 per hour being a sum of $4,216 gross. Superannuation (at 9.5%) on this amount is $400.52.

[103] I find that Mr Hills was unfairly dismissed by Hughes Construction on 4 January 2019.

[104] Re-instatement is inappropriate. It is appropriate to make an order for compensation.

[105] Hughes Construction is to pay Mr Hills the amount of $4,216.00 to be taxed at the ordinary rate of taxation payable on his earnings.

[106] Hughes Construction is to pay the amount of $400.52 on behalf of Mr Hills into the superannuation fund it was making payments on his behalf whilst he was employed.

[107] These payments are to be made within 14 days from the date of this decision and order, that is by 15 May 2019.

[108] This decision is to be published. An Order is issued in conjunction with its publication.

DEPUTY PRESIDENT

Appearances:

K. Hills, on his own behalf

D. Kretschmer, for the Respondent

Hearing details:

2019.

Adelaide.

29 April.

Printed by authority of the Commonwealth Government Printer

<PR707596>

 1   PR707216

 2   Approved by the Fair Work Commission 9 May 2017 [2017] FWCA 2515

 3   A5

 4   A4

 5   A7

 6   A12

 7   City of Sydney RSL & Community Club Limited v Roxana Balgowan [2018] FWCFB 5 at [23] – [24]

 8   A5 page 2

 9   F3 3.1 paragraph 6