[2020] FWC 4775 [Note: a correction has been issued to this document and has been amended throughout this version]
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Mylie Woodland
v
G & G Group Trading Pty Ltd as trustee for The Trustee for KPC Trust (U2019/13096)

DEPUTY PRESIDENT ASBURY

BRISBANE, 8 SEPTEMBER 2020

Application for an unfair dismissal remedy.

BACKGROUND

[1] This Decision concerns an application for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the Act) made by Ms Mylie Woodland in relation to the termination of her employment. The Form F2 application filed by Ms Woodland states that her employer was Sam Virzi and provided an ABN number 88370691040. The Applicant also states in her Form F2 Application that the location at which she worked was Bar Spritz, 29 River Terrace Kangaroo Point, Brisbane. As detailed below, the Respondent was non-responsive to the application and failed to properly engage with the Commission and to comply with Directions including that the Respondent file a Form F3 Response to the application.

[2] In the face of that non-responsiveness, the Commission conducted an ABN search which establishes that ABN 88 370 691 040 relates to an entity known as The Trustee for KPC Trust which has three current business names: BarSprtiz (sic), Bar Spritz Kangaroo Point and the Cliffs Café. The Applicant tendered payslips which contain this ABN number and state that her employer is Bar Spritz. However, prior to her dismissal the Applicant made an anti-bullying application under s. 789FC of the Act alleging that she was bullied at work by Mr Joe Virzi the owner of Bar Spritz. That Application filed on 22 October 2019 lists the employer as Bar Spritz and the ABN is also 88 370 691 040. The Commission’s records in relation to that application indicate that a Form F73 Response was filed by Mr Joe Virzi indicating that the employer of Ms Woodland was G &G Group Trading P/L trading as Bar Spritz. An ASIC search was also conducted for Bar Spritz Kangaroo Point which indicated that the address registered with ASIC for the service of documents for G& G Group Trading P/L was the same as the registered address for service of documents for Bar Spritz Kangaroo Point.

[3] Correspondence was sent to Mr Virzi on 12 May 2020 stating that Ms Woodland had requested to amend her application to include The Trustee for KPC Trust as the Respondent, and that in light of the information contained in the bullying application the Commission would ask the Applicant whether she wished to further amend her application to include G & G Group Trading P/L. The correspondence requested that Mr Virzi advise of any objection to the amendment of the application to provide that the Respondents are The Trustee for KPC Trust and/or G & G Group Trading P/L. The correspondence was sent to two email address for Mr Sam Virzi which had been provided to Commission staff prior to the file being allocated to me, as well as an email address for Mr Joe Virzi, and by registered post to two postal addresses for these entities obtained from the ASIC searches.

[4] After numerous unsuccessful attempts to contact Mr Virzi to facilitate a response to the application, permission was granted for the Applicant to amend the application so that it was made against G & G Trading Group Pty Ltd, trading as Bar Spritz (the Respondent) and The Trustee for KPC Trust.

[5] In addition to issues related to the non-responsiveness of the Respondent, the hearing and determination of the application was not assisted by the Applicant who was highly aggrieved with the manner she claimed to have been dealt with by her former employer. The Applicant had difficulty providing material in a format to enable her application to be dealt with by the Commission and responded with a degree of hostility to my attempts to clarify aspects of her case. In order to deal with the application my Associate assembled 73 emails into one document and ensured that it was served on the Respondent.

[6] The matter was heard by telephone on Wednesday 17 June 2020. The matter was originally listed for hearing on 29 May 2020 but was adjourned at the Applicant’s request. I determined to hold a hearing due to the nature of the material filed by the Applicant and my view that matters I needed to clarify with her were best dealt with orally rather than in writing. The Applicant appeared on her own behalf and gave evidence in support of the Application. No appearance was entered by the Respondent.

[7] In relation to the preliminary matters I am required to consider, I am satisfied that the Applicant has served the minimum employment period and is a person protected from unfair dismissal. I am satisfied that the Applicant has served the minimum employment period. The application was made within the time required in s. 394(2) of the Act. There is no evidence that the dismissal was a case of genuine redundancy and the Applicant’s evidence is to the contrary. The Applicant asserts that the Respondent had 40 employees and there is no evidence from the Respondent to the contrary. The Respondent’s registered name indicates it is a Group and the Applicant has no knowledge of whether it operates other business. It is also the case that the Respondent has not asserted compliance with the Small Business Fair Dismissal Code. In the absence of evidence from the Respondent I am not satisfied it is a small business and, in any event, if I am wrong on this point, there is no evidence to support a finding that the dismissal was consistent with the Code.

[8] Accordingly, the issues for determination are whether the dismissal was unfair with respect to the considerations in s. 387 of the Act, and if the dismissal was unfair, whether a remedy should be granted and if so, the appropriate remedy. Before turning to consider the merits of the application I set out some of the procedural history which informed my decision to hear the matter. The history is based on the material on the file and on research undertaken by my Associate after the matter was allocated to me, to ascertain information necessary to attempt to contact the Respondent.

THE RESPONDENT

[9] As previously noted, the Respondent was listed in the Applicant’s form F2 Application as Sam Virzi and an ABN was provided by the Applicant. The Applicant also provided a contact email address for Bar Spritz. The Commission’s file indicates that Mr Sam Virzi was served with the Application. On 27 November 2019, Mr Sam Virzi emailed Commission staff and provided an alternative email address to the one provided by the Applicant. On 13 December 2019, Mr Sam Virzi was advised by email that a conciliation conference would be conducted on 18 December 2019. On 17 December 2019, Mr Sam Virzi emailed information in eight separate emails, comprising screen shots of information including text messages in Italian, which Mr Virzi undertook to translate. Mr Virzi did not subsequently provide translations of the messages. Mr Virzi also requested an adjournment of the conciliation conference which was refused.

[10] The file indicates that the conciliation conference listed for 18 December 2019 did not proceed because of the unavailability of the Respondent and the parties were advised that if they did not inform the Commission that they wanted to proceed via further conciliation it would be referred to a Member of the Fair Work Commission for arbitration. A further conciliation conference was listed for 28 January 2020 at the request of the Respondent. The file indicates that the matter was not resolved and on 29 January correspondence was sent to both parties by the Commission indicating that the matter had been referred for arbitration and that they would receive notification of further proceedings in due course. The file further indicates that a number of requests were made to the Respondent to complete and file a Form F3 Response to the application. The Respondent did not comply with these requests and there is no record of any communication from the Respondent in relation to the application following the conciliation conference on 28 January 2020.

[11] The matter was allocated to me for hearing. As previously stated, my Associate undertook an ASIC search in relation to the ABN provided by the Applicant. The ABN relates to an entity known as The Trustee for the KPC Trust, with business names Bar Spritz, Bar Spritz Kangaroo Point and The Cliffs Cafe. A current and historical business name extract in relation to the business name “Bar Spritz Kangaroo Point”, indicates that the name is held by an unincorporated body, The Trustee for KPC Trust, and the organisational representative is G & G Group Trading Pty Ltd.

[12] The Current & Historical Extract for G & G Group Trading Pty Ltd indicates that its ACN is 612 216 556. It has a registered address in Queensland and its Director and Secretary is Giuseppe Virzi. Attached to the Applicant’s Form F2 Application is a letter advising the Applicant that her employment with G & G Trading Group Pty Ltd trading as Bar Spritz has been terminated with effect from 12 November 2019. The Applicant also referred in her material to an application she made on 22 October 2019 under s. 789FC of the Act, for an Order to stop bullying. That application was made against Joe Virzi, said to be the owner of Bar Spritz. The Commission’s records indicate that a response to the s. 789FC application was filed by Mr Giuseppe Virzi, stating that he is the owner of G & G Trading Group Pty Ltd trading as Bar Spritz. The response contained a contact telephone number and email address for Mr Giuseppe Virzi. It is apparent that Mr Giuseppe Virzi is also known as Joe Virzi.

[13] My Associate made a number of attempts to contact Sam Virzi and Giuseppe Virzi, including by email to the addresses on the Commission’s files, telephone numbers and by registered mail to the business address registered with ASIC. In correspondence sent on 14 February 2020 Mr Sam Virzi was informed that a Mention would be held on 24 February to deal with the programming of the hearing of the matter and whether permission should be granted to the Applicant to amend her application to correctly name the Respondent. Mr Virzi was also directed to file a Form F3 Response to the application. Information on the file also indicates that my Associate did manage to make contact with Mr Sam Virzi by mobile telephone on 21 February 2020 and resent email correspondence to Mr Sam Virzi, who had claimed not to have received it. Neither Mr Sam Virzi nor any other person on behalf of the Respondent complied with the Direction to file a Response and no appearance was entered at the Mention. Directions were issued for filing of material in relation to the hearing of the matter.

[14] The Respondent did not comply with the Directions and did not respond to numerous attempts by my Associate to make contact. The Applicant’s material was also served on the Respondent by the Commission to known email addresses and by mail to its registered business address and to a residential address registered with ASIC. The matter was listed for hearing on 29 May 2020. A Notice of Listing for the hearing was sent to the Respondent by email and mail on 12 May 2020, to all known addresses, informing the Respondent that the hearing would proceed by telephone on that date and that if the Respondent failed to attend the matter could be determined in its absence and an Order made against the Respondent. Correspondence was also sent to Mr Sam Virzi and Mr Joe Virzi seeking any objection to the application being amended to name The Trustee for KPC Trust and G & G Group Trading Pty Ltd as Respondents.

[15] Further correspondence was sent to the parties on 27 May 2020, noting that no response had been received from Mr Sam Virzi or Mr Giuseppe Virzi to the correspondence sent on 12 May 2020, and reiterating that the matter was proceeding to hearing on 29 May 2020. The correspondence also stated that I may determine to join one or both entities to the Application and will hear and determine the application in the absence of the Respondent, if no appearance was made at the hearing, and that this may include the making of an Order requiring payment of compensation for unfair dismissal by one or both of these entities without further notice. The correspondence was again sent by email to addresses on the Commission’s files and by registered mail to the addresses registered with ASIC.

[16] The Applicant sought an adjournment of the hearing in the morning of 29 May 2020 which was granted. The matter was relisted for hearing on 17 June 2020 commencing at 2.00pm. Correspondence advising of the adjournment and the revised listing date was sent by email to Mr Sam Virzi and Mr Joe Virzi as well as an amended notice of listing. A copy of the correspondence and the amended notice of listing was sent by registered post to the business addresses registered with ASIC.

[17] The hearing proceeded on 17 June 2020 by telephone with no appearance entered by the Respondent. Numerous attempts were made by my Associate to contact Mr Sam Virzi and Mr Giuseppe Virzi at the commencement of the hearing using telephone contact details on the Commission’s files. After the hearing was concluded a voicemail message was received by chambers from Mr Giuseppe Virzi. My Associate returned the call and Mr Giuseppe Virzi did not answer. A voicemail message was left for Mr Giuseppe Virzi informing him that the hearing had concluded and that the Decision was now reserved.

EVIDENCE

[18] The Applicant stated that she had been employed at the Kangaroo Point location for a total period of 5 years. The Applicant said in her oral evidence that she worked for the Respondent for two years after it took over the operation of the venue in 2017. The Applicant also said that she was employed on a full-time basis as Head Barista where she undertook various tasks including allocating tasks to other employees, cleaning, attending to customers and staff. The Applicant stated that she also looked after function bookings, roster changes. cash handling and stock control. Extracts from a contract of employment between the Applicant and Bar Spritz were tendered by the Applicant indicating that she signed the contract on 5 May 2018. The contract indicates that the Applicant’s annual salary was $53,000 per annum plus superannuation as required by law.

[19] The Applicant said that the business was run by members of the same family. Mr Sam Virzi and his father, Mr Giuseppe (Joe) Virzi, principally ran the business. When they were not present, the Applicant was in charge. Sam Virzi would work day shifts and Joe Virzi would work night shifts. The Applicant said that Sam Virzi’s grandfather/Joe Virzi’s father, also known as Sam Virzi (who I will refer to as Sam Virzi Senior) would often be present at the Café and would stay for the majority of the day watching staff working. The Applicant said that there were constant issues between the three Virzis and that Joe and Sam Virzi did not speak to each other. The Applicant also stated that she was told what to do by Joe Virzi who would often state that he paid her wages. However, the Applicant reported to Sam Virzi who told the Applicant to do what he said.

[20] The Applicant said that there were constant arguments between the three Virzis and this often occurred in front of customers. At one stage during the Applicant’s employment she was given an ultimatum by Mr Sam Virzi in relation to not getting along with another employee. According to the Applicant, Mr Sam Virzi sat them down and said that if they did not fix their issues they would lose their jobs. The Applicant stated that she worked out the issues with the other employee and they are now very good friends.

[21] The Applicant asserted that during August 2019, Mr Sam Virzi was overseas, and the Applicant was in charge. During this time, the staff were disobeying orders and were not following directions given by the Applicant. The Applicant attempted to contact Mr Sam Virzi to seek advice about how to deal with the situation, but he did not respond to her calls or messages.

[22] Appended to the Applicant’s Form F2 application was a warning letter she received dated 3 October 2019, stating that she had breached the confidentiality terms of her contract and engaged in conversation with fellow staff members about “the business’ personal matters” causing distress to fellow staff. The Applicant said in relation to this matter that she found out from a customer that the property on which the café was located was going up for lease. The Applicant said that the customer asked what was going to happen to the café and when the Applicant questioned the customer about the matter the customer showed her a picture of the restaurant which stated it was up for lease. The Applicant said that the details were public and that other staff shared the same photo. The Applicant said that it was unfair that she was the only staff member who was provided with a warning letter. The Applicant also said that Sam Virzi Senior stated: “you might get new owner soon” and when the Applicant questioned him, he threw his hands up in the air and smiled.

[23] The Applicant stated that before the warning letter was given to her, she had lodged an anti-bullying claim with the Fair Work Commission due to the behaviour of the Mr Joe Virzi towards the Applicant where he made inappropriate comments about the Applicant, and the Applicant said she felt very uncomfortable around him. The Fair Work Commission had advised the Applicant to keep a log of the incidents. I note that according to the Commission’s records, the Applicant lodged her application for an order to stop bullying on 21 October 2019, after the warning letter was given to her.

[24] Also appended to the Applicant’s Form F2 application was a termination letter dated 12 November 2019, signed by Mr Sam Virzi. The letter states that the Applicant attended a meeting with Mr Sam Virzi on 12 November 2019 and goes on in relation to the meeting as follows:

“During the meeting we discussed that you had been sending an enormous amount of text messages to Sam which contained content which was irrelevant and disturbing including for instance, 30 text messages in one day, unduly annoying and mistreating other staff members and causing them anxiety and stress and interfering with their normal duties. A number of staff members have left due to this conduct also.”

[25] The letter goes on to state that this was serious misconduct and failure to carry out a lawful and reasonable direction, and that “summary dismissal effective immediately” was warranted. In relation to the termination letter, the Applicant said that she did not meet with Mr Sam Virzi on 12 November and she was given the letter at the end of her shift. In relation to the allegation of annoying and mistreating staff, the Applicant said that she can be “full on” and “up front” and “no bullshit” and that a few “collisions with staff” because of dominating personalities had been sorted out. The Applicant also said that she was bullied by Mr Joe Virzi and Mr Sam Virzi Senior and other staff. Further, the Applicant said that Mr Sam Virzi did not support her when she was bullied by his grandfather and by other staff.

[26] The Applicant also tendered a statement by Ms Deborah Toschi indicating that the Applicant was her supervisor during her whole employment at the Respondent’s café between 26 March 2018 and 27 October 2019. Ms Toschi said that the Applicant was in charge of a number of different things including calling customers for bookings and ensuring they were going ahead as planned, opening the café Tuesdays to Saturdays and following directions from Mr Sam Virzi. The Applicant contacted Mr Virzi when there was any negative behaviour by staff members including kitchen staff as well. Ms Toschi also confirmed that an email was sent to all staff members advising that the Applicant was in charge while Mr Sam Virzi was away and any roster changes from staff members would need to be approved by the Applicant.

[27] Mr Thomas Gordon also made a statement on behalf of the Applicant and said that he was a kitchen hand at Bar Spritz from October 2018 to December 2019 where the Applicant was the front of house supervisor. Mr Gordon stated that he witnessed the Applicant being mistreated and disrespected by co-workers and management staff. Mr Gordon also stated that there were rumours going around the business surrounding the ownership and management of the restaurant and that there was a chance that staff would be dismissed. Mr Gordon stated this did not come from the Applicant but from various kitchen staff.

[28] The Applicant submitted a significant number of text messages which establish that Mr Sam Virzi Senior’s behaviour was discussed between the Applicant and Mr Sam Virzi and that Mr Sam Virzi accepted that his grandfather’s behaviour was not appropriate. That behaviour included being rude to customers and watching them in an intimidating manner and yelling at staff of the café. The text messages from the Applicant also state that her health was suffering as a result of the conduct of Mr Sam Virzi Senior. On one occasion, Mr Sam Virzi advised the Applicant to resign and look for another job as he cannot control his grandfather, and it is not “worth your sanity” and the Applicant states in response: “I know il (sic) start looking”.

[29] The Applicant also tendered screenshots of reviews of the café by customers to support her contentions about the behaviour of Mr Sam Virzi Senior, including:

“Had a really rude old man abuse me because we were waiting out the front where the sign says ‘wait to be seated’ We had 5 people he gave us a table for 4. No offer of an extra chair. I then went to get an extra chair for myself and he abused me again. I lost it at him and we left. Don’t know who that old guy was, but if he’s the owner he’s a disgraceful person.”

[30] And;

“We brought our Labrador…the owner complained to us about how we could be fined if our dog had a fight with another dog. He seemed to sit in the café looking on, watching his customers do the slightest thing wrong before giving them a lecture. When we complained to the staff, they said they understood and that the owner is difficult.”

[31] The Applicant also submitted a text message exchange between her and one of the Respondent’s chefs in which she states in response to his message that one day she will put Bar Spritz behind her and that she has three jobs to choose from. The text message also states that it will be a long case if it “goes to court” and refers to the Respondent’s owners in derogatory and highly offensive terms. The text messages the Applicant tendered also evidence her antagonism towards her former employer and some of her colleagues and her propensity to use foul and abusive language directed to persons with whom she was in contact with and on her social media.

[32] The Applicant said in her oral evidence at the hearing that on termination of her employment she received two weeks’ pay in lieu of notice, ($1600) and no annual leave was paid as she had used her entitlements. It appears the notice was paid notwithstanding that the termination letter advised the Applicant that she was summarily dismissed for serious misconduct. After dismissal the Applicant was able to find a new job within 3 – 4 weeks but lost that job. 10 weeks later the Applicant found a new job but later lost that job. The Applicant was employed at the time of hearing this application.

[33] The Applicant also stated that in December 2019, the Respondent shut down Bar Spritz and all other employees were made redundant. The Applicant agreed, in response to a question from me, that had she still been employed by the Respondent in December 2019, she would have been dismissed at the same time as other employees of the Respondent.

LEGISLATION

[34] In relation to unfair dismissal ss. 385 and 387 provide as follows:

“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.”

“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.”

CONSIDERATION

Was the Applicant unfairly dismissed?

[35] I turn now to consider the matters in s. 387 of the Act in relation to whether the Applicant was unfairly dismissed.

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) – s.387 (a)

[36] The Applicant had worked for the Respondent since at least 5 May 2018 and for a former owner of the business before that time. The Respondent bears the onus of establishing that there was a valid reason for the dismissal of the Applicant. The Respondent has filed no material, has disregarded Directions of the Commission and has not availed itself of the many opportunities it has been given to put its case to the Commission. While there is some evidence that the relationship between the Applicant and the owners of the Respondent had deteriorated, I am not satisfied that there was a valid reason for the Applicant’s dismissal.

Whether the person was notified of that reason – s. 387(b)

[37] Notification of “the reason” for dismissal relates to the reason for dismissal based on the capacity or conduct of the dismissed person. 1 Notification of the reason must be given before the decision to terminate is made2 and given in terms that are explicit and clear3. The purpose of the notification of the reason for dismissal is to give the employee an opportunity to respond to that reason and to defend against allegations relating to conduct or capacity. Notification of the reason for dismissal informs the subsequent matters required to be considered by the Commission in ss. 387(c) and (d) of the Act. As a Full Bench of the Commission observed in Crozier v Palazzo Corporation Pty Ltd in relation to provisions of former legislation which were substantially the same as those in s. 387(c) and (d) of the present Act:4

“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 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify the employee and give them an opportunity to respond after the decision to terminate their employment.”

[38] While the termination letter tendered by the Applicant states the reason for dismissal it does not do so with sufficient clarity for a response to have been provided. It is also unclear how conduct of the kind described in the termination letter is willful or deliberate behavior that is inconsistent with the continuation of the Applicant’s employment or a refusal on her part to carry out a lawful and reasonable instruction, as is asserted in the termination letter. I am not satisfied that the Applicant was notified of the reason for her dismissal in the manner contemplated in s. 387(b).

Whether the person was given an opportunity to respond to any reason related to his capacity or conduct – s. 387(c)

[39] The Applicant states that she was handed the termination letter at the end of her shift with no discussion. I accept that evidence given that it is uncontradicted, and in combination with the lack of clarity about the reasons for dismissal I am satisfied that the Applicant was dismissed without being given opportunity to respond to any reason that may have related to her capacity or conduct.

Any unreasonable refusal to allow a support person – s. 387(d)

[40] There was no opportunity for the Applicant to have a support person and accordingly no refusal for the purposes of s. 387(d).

Whether the person was warned about any unsatisfactory performance – s. 387(e)

[41] The Applicant was warned previously about unsatisfactory work performance. However, the Applicant contests the validity of the warning. Given the failure of the Respondent to comply with directions, the Applicant’s evidence in this regard is uncontested. Accordingly, I note the existence of the warning and that its substance is in doubt.

Impact the size of the employer’s enterprise would likely have on procedures followed in effecting the dismissal – s. 387(f)

[42] There is no evidence about the size of the employer other than the Applicant states that it is a family run business and had some 20 employees. I accept that it is probable that this had some impact on the procedures followed by the Respondent 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 – s. 387(g)

[43] For the reasons given in relation to s. 387(f) it is probable that the employer did not have dedicated human resource management specialists or expertise this is not a factor that weighs against a finding of unfairness.

Other relevant matters – s. 387(h)

[44] On the Applicant’s own evidence, her relationship with the Respondent’s owners and manager was troubled. The Applicant’s language as evidenced by her text messages was often inappropriate and offensive, even allowing for the validity of some of the issues she raised. It was my experience that the Applicant was difficult to deal with and responded aggressively to questions from me about her case. I have considered these matters and have concluded that they do not outweigh the unfairness of the Applicant’s dismissal. They are however, reflected in my consideration of remedy.

Conclusion in relation to whether the Applicant’s dismissal was unfair

[45] On balance and after considering the matters in s. 387 of the Act, I am satisfied that the Applicant’s dismissal was unfair. There was no valid reason for the dismissal and it was lacking in procedural fairness.

Remedy

[46] Given that I have found that the Applicant’s dismissal was unfair, it will be necessary to consider the question of remedy. As required by s.390 of the Act, I am satisfied that the Applicant was a person protected from unfair dismissal and that she was unfairly dismissed. I am also of the view that the Applicant should have a remedy for her unfair dismissal. The Applicant seeks compensation.

[47] Reinstatement is the primary remedy for unfair dismissal. Compensation can only be awarded where the Commission is satisfied that reinstatement is inappropriate. In the present case my view is that reinstatement is inappropriate. The Respondent is no longer operating and if it was operating, it is apparent from the Applicant’s own evidence that the relationship is irretrievable. I am satisfied that in all of the circumstances, compensation should be awarded to the Applicant for her unfair dismissal.

[48] In relation to the assessment of compensation, s. 392 of the 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.”

[49] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket5 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;6 Jetstar Airways Pty Ltd v Neeteson-Lemkes7 and McCulloch v Calvary Health Care (McCulloch).8

[50] In McCulloch¸ the Full Bench considered, in some detail, the question of how a contingency discount should be applied to the calculation of the remuneration the dismissed person would have received, or would have been likely to receive, if the person had not been dismissed. The Full Bench pointed out in McCulloch that a deduction for contingencies is applied to prospective losses, or losses occasioned after the date of the hearing. The Full Bench also noted that at the time of the hearing any such impact on the earning capacity of the dismissed person between the date of dismissal and hearing will be known, and a finding can be made on the basis of whether the dismissed person’s earning capacity has in fact been affected during the relevant period.

[51] I turn now to the particular criteria I am required to consider in deciding the amount of compensation to be awarded to the Applicant for her unfair dismissal.

The effect of the order on the viability of the Respondent – s. 392(2)(a)

[52] There is no evidence that an Order for compensation will have any impact on the viability of the Respondent. If this was an issue, I assume that the Respondent would have attended the hearing and put some material before the Commission given that the Respondent was warned that if it did not do so an Order could be made against it, including an Order for compensation.

Length of the Applicant’s service – s. 392(2)(b)

[53] The Applicant was employed by the Respondent for a period of some 18 months and had been employed by the previous operator. It is not clear whether the Applicant’s service was continuous between the two entities. In any event, I have had regard to the total length of her service.

Remuneration that the Applicant would have or would likely have received – s. 392(2)(c)

[54] This consideration requires an assessment of how long the Applicant would have remained in employment but for her dismissal. I am satisfied that the Applicant would not have been employed past the end of December 2019. The Applicant accepts that the business had ceased to operate by that time. I also note that even if the business had remained in operation, the Applicant’s relationship with the owners of the Respondent had reached rock bottom at the point she was dismissed, evidenced by her referring to the owners in a text message to a former colleague in a highly offensive manner and in her text messages and other social media generally. As I have previously noted, the Applicant’s communication skills leave much to be desired and her own evidence demonstrated a tendency to direct foul and abusive text messages to her former employer and colleagues. In my view the relationship was doomed at the point it ended, and while the Applicant disputed this at the hearing when I put the proposition to her, I do not accept her protestations in this regard.

[55] Accordingly, I find that the Applicant would not have remained in employment past 31 December 2019. The Applicant’s annual salary was $53,000 per annum or $1,019.23 per week. In the period from her dismissal on 12 November 2019 to 31 December 2019 the Applicant would have earned an amount of $7,134.60. The Applicant was paid two weeks in lieu of notice on termination of her employment, which would have amounted to $2,038.46. I deduct this amount from the award of compensation. The Applicant would also have been paid $677.78 in superannuation contributions for the same period.

Applicant’s efforts to mitigate loss – s. 392(2)(d) & The amount of any remuneration earned since dismissal – s. 392(2)(e)

[56] The Applicant made reasonable attempts to mitigate the loss of her employment and obtained alternative employment after her dismissal. I accept that the Applicant lost that employment before regaining other employment and that some employment was casual. I also accept that the Applicant lost sick leave credits. Accordingly I do not intend to make any deduction for earnings from other employment.

The amount of any income reasonably likely to be earned during the period between the making of the order for compensation and the actual compensation – s. 392(2)(f)

[57] Given the period which has elapsed since the Applicant was dismissed and the period I have assessed that she would likely have remained in employment, I make no adjustment to the amount of compensation on this basis.

Any other matter that the FWC considers relevant – s. 392(2)(g)

[58] I consider to be relevant that the Applicant lost full-time employment and the alternative employment she has obtained is casual.

Deduction for misconduct

[59] There is no evidence to support a finding that the Applicant engaged in misconduct such that a deduction from compensation to be awarded to her should be made on this ground.

CONCLUSION

[60] In summary I have decided that:

1. An order for the payment of compensation would not affect the viability of the Respondent’s business (s.392(2)(a)).

2. The length of the Applicant’s service favours the making of an award of compensation albeit not the maximum amount (s.392(2)(b)).

3. The remuneration that the Applicant would have been likely to receive, but for her dismissal, is $7,134.60 in gross wages and superannuation contributions in the amount of $677.78 (s.392(2)(c)).

4. I make no deduction for contingencies on the basis of the time frame over which I have assessed that the Applicant would likely have remained in employment.

5. I make no deduction on account of a failure to mitigate loss (s.392(2)(d)).

6. I deduction the amount of $2,038.46 for payment in lieu of notice but make no deduction for remuneration earned since dismissal (s.392(2)(e)).

7. I make no deduction for income likely to be earned during the period between the making of the order and the actual compensation (s.392(2)(f)).

8. The amount of compensation I have decided to award takes into account that the alternative employment that the Applicant has obtained is casual in nature and the employment she lost due to his unfair dismissal was full-time (s. 392(2)(g)).

9. I make no deduction for misconduct (s.392(3)).

[61] An Order requiring that the Respondent pay compensation to the Applicant in the amount is $5,096.14 in gross wages, to be taxed according to law, and superannuation contributions in the amount of $677.78 into the Applicant’s superannuation account will issue with this Decision. The Order will also provide that such payments are to be made within 21 days of the date of the Order.

[62] In the event of non-compliance with the Order, I refer the parties to the information set out on the Commission’s website in relation to the enforcement of Fair Work Commission order in an appropriate court which can be found at the following link. (https://www.fwc.gov.au/unfair-dismissals-benchbook/role-of-the-court#field-content-0- heading)

DEPUTY PRESIDENT

Appearances:

The Applicant on her own behalf.

Hearing details:

2020.

17 June.

By telephone.

Printed by authority of the Commonwealth Government Printer

<PR722560>

 1   Chubb Security Australia Pty Ltd v Thomas, Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at para. 41.

 2   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at paras 70–73, [(2000) 98 IR 137].

 3   Previsic v Australian Quarantine Inspection Services, Print Q3730 (AIRC, Holmes C, 6 October 1998)

 4   (2000) 98 IR 151 at [73].

 5   (1998) 88 IR 21.

 6   [2013] FWCFB 431.

 7   [2014] FWCFB 8683.

 8   [2015] FWCFB 2267.