DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ron Slamowicz
v
Alfred Health
(U2020/9227)

Application for an unfair dismissal remedy – conditional resignation – condition rejected by employer – termination on the employer’s initiative – dismissal unfair – reinstatement inappropriate – compensation ordered

[1] This decision concerns an application by Mr Ron Slamowicz for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (Act). Mr Slamowicz contends that his resignation on 13 May 2020 was subject to a condition that he first be allowed to take his accrued leave, and that his employer, Alfred Health (hospital), rejected the condition and purported to accept his resignation, thereby dismissing him, unfairly. He seeks reinstatement.

[2] The hospital contends that Mr Slamowicz’s resignation was not subject to a condition, and that it accepted his resignation and therefore did not dismiss him. It submitted that in any event the dismissal was not unfair, because Mr Slamowicz chose to resign rather than accept a direction that he perform data entry work, which formed part of his contracted duties.

[3] I will briefly address the four matters that s 396 requires the Commission to decide before considering the merits of an unfair dismissal application. First, Mr Slamowicz’s application was made within the 21-day period required by s 394(2) of the Act. Secondly, Mr Slamowicz was a person protected from unfair dismissal, as he earned less than the high-income threshold and had undertaken the minimum period of employment (s 382). Thirdly, the hospital is not a small business, and therefore no question of compliance with the Small Business Fair Dismissal Code arises. Finally, the dismissal was not a case of genuine redundancy.

Background

[4] Mr Slamowicz was employed by the hospital as the data manager for the department of general surgery. In mid-March 2020, Mr Sean Curtain, the director of human resources services, was advised by the director of operations for the surgical services department, Ms Sarah Larwill, that Mr Slamowicz was refusing to perform data entry work, which was one of the tasks specified in his position description.

[5] Mr Curtain’s evidence was that, because of the onset of COVID-19 and the resulting time pressures he was under, it was not until 12 May 2020 that he met with Mr Slamowicz, Ms Larwill and Professor Jonathan Serpell, director of general surgery, to discuss the issue. In his evidence, Mr Curtain said that Mr Slamowicz confirmed at the meeting that he could do data entry work, had done it before, and knew that he was paid in part to do those tasks and that they were part of his position description. Mr Curtain’s evidence was that he told Mr Slamowicz that he would be formally directed to perform the data entry work and that if he refused, it could adversely affect his employment. Mr Slamowicz said that the meeting of 12 May 2020 was not a disciplinary meeting, and noted that during the meeting, there was discussion of a ‘HPB data management role’ (new role), which he had been offered earlier in the year, but declined.

[6] After the meeting on 12 May 2020, Mr Curtain sent to Mr Slamowicz the following email message:

“Ron

Thank you for coming in earlier today to meet with Jonathan, Sarah and I (sic). It follows a number of discussions I understand you have had regarding the content and tasks of your role as Data Manager for General Surgery.

I have attached your Position Description and also the specific tasks associated with data entry for HPB.

As we discussed, it is the direction of Sarah and Jonathan that you complete the tasks associated with data entry.

This is:

•  a component of your PD and has been for some time;

•  work that you are technically being paid to perform as it is in your PD;

•  work you are capable of doing, trained and/or skilled at and able to perform;

•  work that you have time to complete within your role, and

•  work that you have previously been called upon to do.

If you can indicate to me by COB tomorrow (Wed 13/5/20) your agreement or otherwise to perform these tasks, I’d be grateful.”

[7] On 13 May 2020, Mr Slamowicz replied to Mr Curtain, copying Professor Serpell and Ms Larwill, with the following email:

“Hi Sean,

I am sorry to say I cannot see us reaching a mutually agreeable solution, so I wish to tender my resignation.

I would like this to take effect from Monday June 1 but with the date adjusted for my annual leave plus long service leave which may take this up to December. Please advise on this calculation.

I have some concern for the burden that my leaving may place on some medical staff, and the system I created may need some support. I would be happy to discuss ways in which this could be done.”

[8] Later that day, Mr Curtain replied to Mr Slamowicz stating that he accepted the resignation. He said that Mr Slamowicz had just over 10 weeks’ leave, and that he would ask payroll about his long service leave entitlement. Professor Serpell also responded, stating ‘I note and accept your resignation effective 1 June 2020’.

[9] On 15 May 2020, there was a succession of emails between Mr Curtain and Mr Slamowicz. Mr Curtain confirmed to Mr Slamowicz that he had 26 weeks of long service leave. Mr Slamowicz replied the same day, stating that this was good, and that ‘from what I understand that would get me another 2 weeks of annual leave.’ Mr Curtain then replied: ‘I assume you wish to remain paid through your AL and LSL instead of a lump sum payment in June?’ And Mr Slamowicz replied stating: ‘Sorry Sean. Thought I made an earlier reference to calculating the date. Please pay through AL and LSL.’

[10] Mr Curtain’s evidence was that he did not understand Mr Slamowicz to be applying to take his leave before his resignation took effect. Rather, he understood that Mr Slamowicz wanted his employment to end with effect from 1 June 2020 and that he wanted to be paid for his leave as if he had taken it, rather than receiving a lump sum payment on termination.

[11] On 28 May 2020, Mr Curtain sent Mr Slamowicz an email in which he thanked Mr Slamowicz for his resignation and stated that ‘as requested below, your employment will cease on Monday 1 June 2020’, and that the hospital would make a lump sum payment of his accrued but untaken leave entitlements to him on termination.

[12] On 29 May 2020, Mr Slamowicz replied, stating that his preference was ‘to have his long service leave and annual leave as normal pay’. Mr Curtain responded stating that it was not possible for Mr Slamowicz to continue to take annual and long service leave after his resignation on 1 June 2020. Mr Slamowicz replied that he was confused and surprised, given that ‘earlier I had asked you how to adjust my resignation date’, and that he would withdraw his resignation if necessary. Mr Curtain replied that his resignation had been accepted and could not be rescinded.

[13] Mr Curtain’s evidence was that he asked Mr Slamowicz whether his reason for wanting to take leave was to avoid being paid a large sum before the end of the 2019/2020 financial year, and that if so he could as a ‘courtesy’ allow Mr Slamowicz to extend his notice period by taking a short period of leave until 1 July 2020, and then receive a lump sum pay-out of the rest of his entitlements. Mr Slamowicz replied that he appreciated the courtesy offer.

[14] Then on 31 May 2020, Mr Slamowicz sent Mr Curtain an email stating that he had not resigned effective from 1 June 2020, and restating the words of his message from 13 May 2020, namely that he wished to tender his resignation, to take effect from June 1 but with the date adjusted for his annual and long service leave which may take the date up to December.

[15] Mr Curtain then asked Mr Slamowicz whether he still wished to take annual leave until 1 July 2020. Mr Slamowicz said that he did. Between 14 June and 29 June 2020, Mr Slamowicz exchanged further emails with Mr Curtain concerning his wish to take his accrued leave until his entitlement was exhausted. Mr Slamowicz estimated that this would mean that he would be on leave until 6 March 2021. Mr Curtain said that he could not accommodate this request and that termination would be effective from 1 July 2020, whereupon he would receive a payment of his termination entitlements. And this is what occurred.

Findings

[16] I make the following factual findings. First, I find that it was part of Mr Slamowicz’s job to undertake data entry. The position description that applied to his role of ‘data manager – general surgery’ clearly prescribes ‘data management’ as one of the four principal areas of his role. Mr Slamowicz was required to ‘collect, maintain and analyse patient data including admissions, diagnoses, operations and resources requirements of the directorate.’ Data entry also formed part of Mr Slamowicz’s ‘clinical audit’ duties. Mr Slamowicz acknowledged in cross-examination that data entry was part of his role.

[17] Secondly, I find that Mr Slamowicz’s duties included data entry for the Hepatobiliary and Pancreatic unit (HBT), because this unit is part of the general surgery department.

[18] Thirdly, I find that Mr Slamowicz had previously, at least at times, been unwilling to perform data entry. Mr Slamowicz said that he had ‘never refused to do anything that’s put in front of me’. He denied that he did not consider data entry part of his role but said that it ‘depends on what data entry’. However, Mr Slamowicz did not say that he had always done all of the data entry work that was expected of him. The hospital submitted a written record made by Professor Serpell of a meeting with Mr Slamowicz on 6 March 2018, which states that ‘Ron is not currently undertaking data collection and data entry’. Mr Slamowicz was taken to this document in cross-examination. He did not dispute the accuracy of the record. The hospital also submitted an email message from Mr Slamowicz to Professor Serpell dated 4 March 2020 concerning the offer of the new role, in which Mr Slamowicz stated: ‘I always took the position that not interested (sic) in doing data entry and was not required to do so’. Clearly, Mr Slamowicz had not always undertaken all of the data entry work he was required to perform.

[19] Fourthly, I find that at the meeting on 12 May 2020, Mr Curtain told Mr Slamowicz that he would be directed to perform data entry work. I accept Mr Curtain’s account of what was said at the meeting on 12 May 2020. Mr Curtain was a credible witness, and his account is consistent with his email to Mr Slamowicz the following day. I accept Mr Slamowicz’s evidence that the new role was discussed at the meeting. Mr Curtain did not dispute this. However, the critical occurrence at the meeting on 12 May 2020 was not the discussion of the new role that Mr Slamowicz had previously declined to accept, but the direction that Mr Slamowicz perform data entry duties.

[20] Fifthly, I find that the data entry work that was the subject of the direction referred to during the meeting of 12 May 2020 was the data entry associated with Mr Slamowicz’s current role, which included data entry for the HBT unit, because that unit is part of the general surgery department. This is why the email of 12 May 2020 attached both Mr Slamowicz’s position description, and the ‘data entry for HPB’ document. Mr Slamowicz was not being directed to perform the duties of a new or different position. It was not the case that Mr Slamowicz was being required to do the new role as well as his current role. Rather, he was directed to perform data entry, including data entry for the HBT unit, which was part of his job.

[21] Finally, I find that the direction in the letter of 12 May 2020 was clear and required Mr Slamowicz to undertake the data entry duties of his current role, which covered the HPB unit.

Submissions

[22] Mr Slamowicz contended that he offered to resign on the condition that he take all of his accrued annual and long service leave, from 1 June 2020, such that his employment would not end until late 2020 or early 2021. He submitted that he did not agree to a resignation date of 1 July 2020, and that by insisting upon a termination date of 1 July 2020, the hospital terminated his employment. Mr Slamowicz further contended that his dismissal was unfair, because there was no valid reason for it. Mr Slamowicz contended that he was deprived of the opportunity to retire with dignity, to take all of his accrued leave, and to make use of the generous salary sacrifice arrangements that had resulted in the hospital deducting a total of only $299.00 in PAYG taxation from his salary for all of the preceding three years.

[23] Mr Slamowicz contended that the appropriate remedy for his unfair dismissal is reinstatement with continuity of employment and an order for payment of lost wages. He said that, if he were reinstated, he would immediately return the termination payment of his accrued leave, then ask the hospital to repay three months of it to cover the period since his dismissal, deeming him to have been on leave - but with this payment made subject to the salary packaging arrangements. He said that he would then seek to take and be absent on three months’ leave, again with the leave payments being subject to salary packaging.

[24] The hospital submitted that, by his email of 13 May 2020, Professor Serpell accepted Mr Slamowicz’s resignation on behalf of the hospital, and that, despite the fact that the hospital allowed Mr Slamowicz to extend his notice period to 1 July 2020, so that he could receive more favourable tax treatment of his termination payment as a result of it occurring in the new financial year, this did not affect the essential character of his resignation. The hospital contended that, if the Commission were to conclude that it had terminated Mr Slamowicz’s employment, it should nevertheless determine that the dismissal was not unfair, because Mr Slamowicz had chosen to resign rather than perform all of the duties of his position as required.

[25] The hospital contended that reinstatement would not be an appropriate remedy both because of Mr Slamowicz’s failure to confirm that he was prepared to undertake the data entry component of his role, and because of his apparent motivation in seeking this remedy, which was not to return to normal duties but to take leave and receive payment at concessional tax rates on the basis of the hospital’s salary sacrificing arrangements. As to compensation, the hospital said none should be awarded, as Mr Slamowicz took no steps to mitigate his loss.

Consideration

[26] I deal first with the hospital’s jurisdictional objection. It is clear that Mr Slamowicz’s employment was terminated ‘on the employer’s initiative’ for the purpose of s 386(1)(a). Mr Slamowicz did not offer to resign effective from 1 June 2020. His email of 12 May 2020 stated that he wished to tender his resignation, and that he would like his resignation to take effect ‘from Monday June 1 but with the date adjusted for [his] annual and long service leave which may take this up to December’. Mr Slamowicz was proposing that from 1 June 2020, he would take all of his leave, and that his resignation would be effective on the date his leave expired. Mr Slamowicz did not know exactly how much leave he had accrued. That is why he asked Mr Curtain to ‘advise on this calculation’, meaning the calculation of the number of days of leave, which would then produce the effective date of resignation.

[27] Mr Curtain said that he understood from Mr Slamowicz’s email of 12 May 2020, and further emails over the following days, that he was proposing to end his employment from 1 June 2020 and to be paid as though he were still employed and actually taking leave. This would have been a bizarre request, as one cannot take leave after one’s employment has ended. But this is not what Mr Slamowicz was proposing.

[28] Mr Slamowicz did not resign unconditionally. He resigned on the basis that his employment would end at a particular time, namely when he had taken all of his leave, commencing from 1 June 2020. Contrary to Mr Curtain’s understanding, Mr Slamowicz’s email did not state or imply that he wished for his employment to end on 1 June 2020. The date of his resignation was to be ‘adjusted’ from this date, to take into account his accrued leave.

[29] The hospital contended that, when Professor Serpell accepted Mr Slamowicz’s resignation on 13 May 2020, he did so clearly on the basis that the resignation would take effect on 1 June 2020, and that Mr Slamowicz did nothing at that time to correct the professor’s understanding. However, Professor Serpell had misunderstood Mr Slamowicz’s email just as Mr Curtain had. Mr Slamowicz was under no obligation to correct this misunderstanding. He may not have appreciated that he had been misunderstood. Mr Slamowicz was entitled to rely on the words he had used to convey his resignation, which was clearly a conditional one.

[30] Mr Curtain’s ‘courtesy’ offer to allow Mr Slamowicz to extend his notice period to 1 July 2020 did not bring about an extension by Mr Slamowicz of his notice period. Rather, this was a counteroffer to bring forward the date on which the employment would end. Although Mr Slamowicz thanked Mr Curtain for this offer, he did not accept it, because he continued to make clear that he had not offered to resign with effect from 1 June 2020 and reiterated the condition that he had attached to his resignation in the email of 13 May 2020.

[31] As Mr Curtain explained, the hospital processed the termination of Mr Slamowicz’s employment with effect from 1 July 2020. This occurred against his wishes. Plainly, this was a termination of employment on the employer’s initiative. Mr Slamowicz was therefore dismissed for the purpose of s 386(1)(a). I reject the hospital’s jurisdictional objection.

[32] Next is the question of whether Mr Slamowicz’s dismissal by the hospital was unfair. There was no valid reason for the dismissal, because the hospital did not have any such reason (s 387(a)). It had not yet reached the point of believing that Mr Slamowicz’s employment should be terminated. Mr Slamowicz was not notified of a reason for dismissal or given an opportunity to respond to any reason for dismissal related to performance or conduct (ss 387(b) and (c)). He was, in effect, warned about unsatisfactory performance for the purpose of s 387(e). I do not consider that the matters referred to in ss 387(d), (f) or (g) affect the analysis of whether the dismissal was unfair in this case.

[33] Taking into account the matters in s 387, and in all the circumstances, I consider that Mr Slamowicz’s dismissal by the hospital was unreasonable, and therefore unfair (see s 385). He had offered to resign subject to the condition that he be allowed to take his leave from 1 June 2020. If the hospital did not wish to grant this condition, it should have allowed Mr Slamowicz the opportunity to reconsider his position. Instead, it ended his employment on 1 July 2020. I appreciate that the hospital considered that this involved a courtesy or concession to Mr Slamowicz, however it nonetheless brought his employment to an end against his wishes, and without a valid reason.

[34] The question then arises as to what if any remedy should be awarded. Mr Slamowicz contended that none of the ‘accepted factors that can make reinstatement inappropriate apply in this case.’ There is no closed list of factors that can make reinstatement inappropriate. It is true that the circumstances cited by Mr Slamowicz, namely the closure of a business, the incapacity of an employee, or the loss of trust and confidence, may often mean that reinstatement is inappropriate. However, the Act reposes in the Commission a discretion in relation to remedy. Section 390 states that the Commission ‘may order a person’s reinstatement of compensation’. Taking into account all of the circumstances, as well as equity, good conscience and the merits of the matter (see s 578), I do not think it appropriate to reinstate Mr Slamowicz for each of the following reasons.

[35] First, Mr Slamowicz resigned from his employment, rather than agree to comply with the direction of the hospital that he undertake the data entry component of his role as data entry manager. It is evident that Mr Slamowicz did not want to perform the data entry duties that were the subject of the direction from the hospital on 12 May 2020. His response to the direction was that he ‘cannot see us reaching a mutually agreeable solution’, and so he wished to resign. However, there was no legitimate basis for Mr Slamowicz to expect a ‘mutually agreeable solution’. What was required of Mr Slamowicz was compliance with the lawful and reasonable direction that had been issued to him by his employer. In my opinion, Mr Slamowicz’s email of 13 May 2020 clearly conveyed that the direction was not acceptable to him. If Mr Slamowicz were to be reinstated, it would be to a situation in which the hospital had directed him to undertake duties that formed part of his job, but which he had decline to accept.

[36] In the course of his oral evidence, Mr Slamowicz said that he was happy to do the data entry for HPB, and when asked if he had any objection to doing data entry work, he said ‘no’, and that he had never refused to do anything that was put in front of him. However, on 13 May 2020 he was directed to perform data entry work. He did not do so. There is no evidence of his having undertaken data entry between this date and the end of his employment. At no point did Mr Slamowicz acknowledge that he had been wrong not to accept the direction that was given to him. I consider that, were Mr Slamowicz to be reinstated, the requirement that he undertake all relevant data entry would likely remain a bone of contention between the parties, whereas there is no basis for any legitimate dispute, because an employee must simply perform all of the duties of his or her position.

[37] Secondly, Mr Slamowicz has made very clear that upon reinstatement, he wishes to take a substantial amount of leave. Mr Curtain was asked in cross-examination whether an organisation than employs some 10,000 employees could not find a position which Mr Slamowicz could undertake (his old role has been filled). Mr Curtain said that he did not know, but while this was a possibility, he thought it would be extremely difficult to find a vacant position that a person could fill only to then take leave and not perform the work. I accept this evidence. I note that in an earlier witness statement Mr Curtain had said that if Mr Slamowicz were reinstated, he did not believe he would be able to take more than 3 months leave however this statement related to Mr Slamowicz’s previous role, which has now been filled.

[38] Further, not only does Mr Slamowicz intend to take large amounts of leave, he proposed that he be treated as having been on leave between the end of his employment and his reinstatement. Mr Slamowicz intends to repay his termination payment and ask the hospital to immediately repay three months of this amount, backdated, and subject to the concessional taxation treatment that arises from the salary sacrificing arrangements available to employees of the hospital. It is difficult to see how the hospital could agree to this, because the arrangement would proceed upon a fiction. For the months preceding any reinstatement, it would be wrong for the parties to represent that Mr Slamowicz was on leave, because he was not employed.

[39] The fact that Mr Slamowicz has particular expectations about the modalities of taking and being paid for leave upon his reinstatement, some of which appear to be unworkable, tells against a conclusion that reinstatement is appropriate, because it begs the question as to what will occur if, as seems likely, the hospital rejects some or all of Mr Slamowicz’s proposals. To my mind, the Mr Slamowicz’s expectations about the arrangements that should apply to his reinstatement presage disappointment and disputation.

[40] Thirdly, it appears to me that the motivation behind Mr Slamowicz’s request for reinstatement is, to a substantial degree, to accrue a tax advantage in respect of leave payments, rather than to resume his previous job. This too tells against the appropriateness of reinstatement. Further, I note that Mr Slamowicz’s F2 unfair dismissal application did not initially seek reinstatement, but rather compensation and an apology.

[41] Fourthly, although the evidence establishes that the hospital has many thousands of employees, it does not show that there is any particular role to which Mr Slamowicz could be reinstated. The fact that his former role has now been filled is not a barrier to reinstatement. But there is no indication of what work he might reasonably undertake. I am not persuaded that it is appropriate to order reinstatement, as it were, at large.

[42] For each of the reasons above, and especially when they are considered together, I consider it inappropriate to reinstate Mr Slamowicz in this case, and I decline to do so.

[43] On the other hand, I consider that it is appropriate to award a remedy of compensation. In determining the amount of an order for compensation, the Commission is required to take into account all the circumstances of the case, including those identified in s 392(2). There is no indication that an order for compensation would affect the viability of the employer’s enterprise (s 392(2)(a)). I also note Mr Slamowicz’s long history of employment with the hospital of some 17 years (s 392(2)(b)).

[44] The Commission must consider the ‘remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed’ (s 392(2)(c)). This requires the Commission to consider what would have occurred if the person was not dismissed, and in particular, how long the person would likely have remained employed. This is obviously a hypothetical situation which cannot be described with any certainty.

[45] Mr Curtain’s evidence was that, if Mr Slamowicz had refused the direction to perform data entry work, the hospital would certainly have initiated a formal disciplinary process, and that if Mr Slamowicz had maintained his refusal throughout that process, the likely outcome is that the hospital would have terminated his employment for failing to comply with a lawful and reasonable direction. In its final submissions, the hospital contended that this process would have taken a matter a weeks.

[46] During the proceedings, Mr Slamowicz said that he was prepared to undertake data entry duties. However, the question posed by s 392(2)(c) looks back in time to a hypothetical situation. It concerns what would have happened, but for the dismissal, which means one assumes that the dismissal, and the unfair dismissal hearing, did not occur.

[47] It is possible that, faced with a disciplinary process and the threat of termination of employment, Mr Slamowicz would have agreed to carry out the hospital’s direction that he perform all of the data entry duties of his position. However, this was in essence the situation that confronted Mr Slamowicz on 12 May 2020. Mr Curtain’s evidence, which I accept, was that during the meeting he told Mr Slamowicz that if he refused to do the data entry work it could adversely affect his employment. In response to the written direction, Mr Slamowicz said that he did not believe that there would be a mutually agreeable solution. He did not follow the direction. I think it unlikely that Mr Slamowicz would have changed his perspective and acceded to the hospital’s direction.

[48] In the present case, the hypothetical scenario raised by s 392(2)(c) would posit that the hospital had not ended the employment on 1 July 2020, but instead accepted that Mr Slamowicz’s resignation was conditional. I consider that this would have occurred by mid-June, two weeks after Mr Slamowicz’s email of 31 May 2020 (see [14] above). I consider that the hospital would have rejected the condition and then given Mr Slamowicz time to consider whether he wished to resign without the condition; that Mr Slamowicz would have decided not to resign; and that he would then have sought the ‘mutually agreeable solution’ he referred to in his reply to the written direction. In my opinion, Mr Slamowicz would have remained unwilling to undertake data entry. The same stance that had him resign rather than accept the direction to perform data entry would have seen him continue to resist the direction. I consider that Mr Slamowicz would have been warned several times, and then dismissed, around the end of July 2020. Although the hospital said that the process of dismissing Mr Slamowicz for not following a lawful and reasonable direction would take only a few weeks (presumably from mid-May), I consider that the process would have started later, and taken longer, because of the matters I have mentioned, and because of the fact of Mr Slamowicz’s long period of service, which I believe would have led the hospital to afford the process more time. I also consider that Mr Slamowicz’s employment would have been terminated on five weeks’ notice, as required by s 117 of the Act.

[49] My best estimate is that, had Mr Slamowicz not been dismissed, he would have remained employed for a period of nine weeks beyond the date on which his employment with the hospital in fact ended. I therefore consider that the ‘remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed’, for the purpose of s 392(2)(c), is nine weeks’ pay.

[50] The Commission is required to consider the efforts of a person to mitigate the loss suffered because of the dismissal (s 392(d)). Mr Slamowicz gave evidence that he did not make any efforts to seek alternative employment. He contended that his age of 68, and the COVID-19 pandemic, made his employment prospects poor. However, the health sector is in great demand because of the pandemic, and the possibility of alternative employment cannot be ruled out. Mr Slamowicz failed to mitigate his loss. On the other hand, it would seem unlikely that a new job could have been found in the first month following dismissal (recognising that efforts to find work could however have commenced during the notice period). I consider a discount of 10% to be appropriate.

[51] I note that Mr Slamowicz has not earned any money since his dismissal (see s 392(2)(e)). No amounts are to be deducted on this account from the amount of compensation. I have reflected on the likely course of events and do not consider it appropriate to make a further deduction for additional contingencies.

[52] For the purposes of calculating one week’s pay, I note Mr Slamowicz’s evidence that he was paid $1,560.28 per fortnight. Nine weeks’ pay would amount to $7,021.26. To this I will add 9.5% in respect of superannuation, which is $667.02, resulting in a sum of $7,688.28. When the deduction of 10% is applied ($768.83), this gives a figure of $6,919.45.

[53] Mr Slamowicz contended that the Commission should take into account the very generous salary sacrificing arrangements that applied to his employment at the hospital, which allowed him to minimise his PAYG tax. I have had regard to this however I am not persuaded that there is any proper basis to increase the compensation amount to reflect this circumstance. For one thing, the amount of tax Mr Slamowicz ultimately pays for the current financial year will depend on all of his financial circumstances. These are not before the Commission and it would be wrong to make assumptions. I note that it is common for the Commission to have regard to taxation, but to settle on a gross amount and leave taxation for determination. 1 I consider this to be the correct approach in this matter. In my opinion, having regard to the above matters, the appropriate amount of compensation is the amount Mr Slamowicz would likely have received had his employment not been terminated on 1 July 2020, adjusted to take account of his failure to mitigate loss as I have indicated, less taxation as required by law.

[54] I am satisfied that a remedy should be ordered in this matter. Reinstatement is inappropriate, but compensation is appropriate in all the circumstances. I will order compensation to be paid to Mr Slamowicz in the amount of $6919.45 with deduction of taxation required by law. This amount is to be paid by the hospital to Mr Slamowicz within 28 days of the date of this decision. An order is separately issued in PR724007.

DEPUTY PRESIDENT

Appearances:

G. Ihlein for Mr Slamowicz
R. Davern of counsel for Alfred Health

Hearing details:

2020
Melbourne
13 October

Printed by authority of the Commonwealth Government Printer

<PR723944>

 1   See: Bowden v Ottrey Homes Cobram and District Retirement Villages Inc [2013] FWCFB 431; Double N Equipment Hire Pty Ltd v Alan Humphries [2016] FWCFB 7206; Vennix v Mayfield Childcare Limited [2020] FWCFB 550