| [2020] FWC 5909 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Pamela Green
v
The Trustee for Vamos International Discretionary T/A Vamos Pty Ltd
(U2020/9324)
COMMISSIONER SIMPSON |
BRISBANE, 6 NOVEMBER 2020 |
Application for unfair dismissal – applicant no longer eligible for JobKeeper payment – no valid reason – dismissal harsh, unjust and unreasonable – compensation ordered.
[1] On 8 July 2020, Ms Pamela Green made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against The Trustee for Vamos International Discretionary T/A Vamos Pty Ltd (Vamos/The Respondent).
[2] The matter was listed for conciliation before a Staff Conciliator on 30 July 2020. The matter did not settle at conciliation and was allocated to me.
[3] I issued directions for filing of material and the matter was listed for Hearing on 27 October 2020. Ms Green was represented by her daughter Ms Rachel Darkin and the Respondent was represented by Ms Leah Akoka – HR Manager of Vamos.
[4] Vamos raised a jurisdictional objection on the basis it had 12 employees at the time of the dismissal, and therefore the employer is classified as a Small Business, and that the dismissal was consistent with the Small Business Fair Dismissal Code.
[5] Ms Green said she had been working in the same job as a Machinist for approximately 23 years. She said the business has changed owners a few times since and has been employed by the Respondent since August 2018.
[6] Ms Green said she had previously been a “permanent casual,” however when Vamos took over the business her employment became casual employment.
[7] Ms Green said she was working 38 hours a week, however when JobKeeper started, she worked 29 hours to make her pay equivalent to the JobKeeper payment of $750.
[8] Ms Green submitted her employment came to an end on 6 July 2020 after being told she was no longer eligible for JobKeeper and received a separation certificate on 8 July 2020.
[9] Ms Green said that prior to her dismissal she had been an eligible recipient of JobKeeper since it became available, but the employer chose to take her off following Ms Green questioning her rights.
[10] Ms Green said her dismissal followed an altercation between herself and her employer regarding questions she had raised about JobKeeper payments, and hours that were to be worked unpaid. Ms Green submitted her dismissal related directly to her questioning JobKeeper payments and having to repay hours and had nothing to do with shortage of work.
25 May – 28 May 2020
[11] Ms Green said she was away from work sick from Monday 25 May until Thursday 28 May inclusive. Ms Green said she provided Vamos with a medical certificate. Ms Green said she took the time off, as due to the climate with Covid19, her doctor advised it would be irresponsible to be at work and make others sick.
1 June 2020
[12] Ms Green said that upon returning to work she was told that she had to repay the time she was off sick, being 29 hours, and work them unpaid.
[13] Ms Green said she called the Australian Tax Office (ATO) and Fair Work Ombudsmen (FWO) to clarify the rules regarding JobKeeper. Ms Green said both the ATO and the FWO advised that while on JobKeeper payment, whether a casual or a full-time employee, that hours did not have to be repaid for JobKeeper payments received. They also advised that casual staff fall under the category of unpaid leave, which included being off sick, even as a casual when JobKeeper is in effect.
[14] Ms Green said after discussing this with her supervisor, manager and office manager she was advised to call the HR office in Melbourne. Ms Green said she made several phone calls to confirm with the ATO and the FWO that the information that they had given her was correct and she had not left out details.
15-17 June
[15] Ms Green said that sometime between 15 and 17 June she went to the office with her supervisor named Lorraine and spoke to the office manager named Michelle about her upcoming annual leave planned from 22-26 June. Ms Green said the leave had been approved and was to travel to see her mother who was not doing so well after her father’s passing.
[16] Ms Green said she requested to have Monday 29 June as annual leave also as she had to sign some legal documents after her father’s passing before leaving to travel the seven hours back to Queensland.
[17] Ms Green said that Michelle said if she had Monday as well she would owe the company another eight hours, and it would be best to just take the whole extra week as it would be easier, and she wouldn’t have more hours to repay.
[18] Ms Green said there was no mention of this being an issue and both her supervisor and office manager approved the leave. Ms Green said she therefore agreed to take two weeks’ leave instead of the one week and one day requested and accepted this knowing it would be unpaid.
18 June 2020
[19] Ms Green said she was told that Mr Zeeshant Shaukat, the head of production and Ms Leah Akoka, the HR manager, wanted the matter of repaying the 29 hours dealt with before she went on leave and was advised to call the HR office in Melbourne.
[20] Ms Green said while she was at work she called the Melbourne HR office and spoke with Ms Akoka. She told Ms Akoka of her advice from the ATO and the FWO that JobKeeper did not need to be repaid in hours. Ms Green said Ms Akoka told her if she did not repay the hours she could be “eliminated” and it was within her right and she did not pay people to bludge or have a holiday and that she would not get free money whether she was entitled to JobKeeper or not.
[21] Ms Green said again in her oral evidence that she had a conversation with Ms Akoka where Ms Akoka told Ms Green that she was required to make up the extra hours, otherwise she would be eliminated. She said Ms Akoka said she would be eliminated three or four times during the course of the conversation.
[22] Ms Green said she told Ms Akoka that she was not a bludger, she was sick and has never been a bludger in her life. She said Ms Akoka told her she did not have to work the 29 hours but if she didn’t she would be eliminated.
[23] Ms Green said Ms Akoka was hostile during the call and she ended up in tears and fearful about losing her job.
[24] Ms Green said that after hanging up the phone her supervisor Lorraine saw that she was visibly upset, and she explained the phone call that took place. Ms Green said Lorraine told her to take a deep breath and think about how she wanted to proceed. Ms Green said she told Lorraine that she felt she had no choice, and that she was under duress to work 29 hours unpaid, and whether that was right or not she was going to lose her job.
[25] The Respondent did not dispute Ms Green was sick during the week commencing 25 May. Ms Akoka submitted Ms Green was required to work an additional 29 hours that she had been paid for but not yet worked. She submitted from the Respondent’s view, Ms Green had already received the pay, as casuals do not get sick leave.
[26] Ms Akoka said Ms Green had a conversation with her manager, as well as with herself, where it was explained to Ms Green that she was required to work the hours. Ms Akoka said it was explained to Ms Green, if she did not agree to work the additional hours, she would not be nominated for JobKeeper.
[27] Ms Akoka said she explained she would not be keeping people on JobKeeper if they did not want to work. Ms Akoka disputed she used the word “eliminated” and said she never used that word. Ms Akoka said she told Ms Green she would not be nominated for JobKeeper if she chose not to work the 29 hours.
[28] Towards the end of the Hearing, Ms Akoka said that during this conversation regarding Ms Green’s upcoming annual leave, Ms Akoka said to Ms Green if she wanted to take annual leave on JobKeeper she would need to make up the hours. If she did not want to make up the hours, then she wouldn’t be eligible for JobKeeper. Ms Green strongly disputed this and said this conversation was regarding making up the time for sick leave, not about the annual leave.
[29] Ms Akoka continued by saying that Ms Green was told before she went on annual leave, if she was going to go off she would not be nominated for JobKeeper unless she made up the hours. She said Ms Green said she’d spoken to the ATO and that she did not need to make up the hours.
[30] Ms Green again strongly disagreed with this and appeared visibly upset upon hearing this version of events from Ms Akoka. She was adamant the discussion about making up the hours was in relation to making up the 29 hours while on sick leave and had nothing to do with the annual leave she was about to take.
6 July 2020
[31] Ms Green said she came into work after her annual leave and sat down at her machine when her manager Michelle requested she worked the additional hours to cover the sick leave. She said Michelle came to her machine and asked if she could start to repay the 29 hours by working an extra 30 minutes unpaid each day.
[32] Ms Green said she said to Michelle that she didn’t believe she had to do this as this is what the ATO and the FWO had advised her, even as a casual.
[33] Ms Green said Michelle then left and a short time later she was then called into a room where Mr Shaukat immediately informed her that she was not eligible for JobKeeper. He said while Ms Green was on leave, he and Ms Akoka had been discussing the matter and decided she was no longer eligible for JobKeeper.
[34] Ms Green said she went back to her machine crying and continued sewing. She said that Michelle then came and told her that Mr Shaukat wanted her gone immediately. Ms Green said she packed her belongings and left.
[35] Ms Green said she then requested a separation certificate, so she knew why she was being let go. Ms Green said she received this on 8 July, and that the reason provided for the separation was shortage of work. A copy if this was supplied to the Commission.
[36] Ms Lyn Healy provided a witness statement for Ms Green. Ms Healy said on 6 July 2020 Ms Green, who she sat next to, returned to work after having 2 weeks leave to visit her ailing mother in NSW. Ms Healy said after working for approximately an hour, a request came from the office about when Ms Green was going to make up the hours she had off due to illness a few weeks earlier.
[37] Ms Healy said Ms Green said on the advice from the tax office she was not required to do this, the message was taken back to the office and within half an hour Ms Green was called to the office and was informed she was no longer entitled to JobKeeper and was told to leave the factory.
[38] During cross examination Ms Healy was asked whether she heard these conversations, or whether Ms Green told her about it. Ms Healy confirmed she heard all of the conversation herself as she sat next to Ms Green. It was put to Ms Healy that she sat a distance of 2.5 metres and it is difficult to hear with machines on. Ms Healy said she did not find it difficult at that distance. Ms Healy said she was able to hear because there were less staff on the floor than usual and therefore less machines were on.
[39] Mr Shaukat, who is the Head of Production at the Respondent said he and the production manager Ms Michelle Hudson spoke to Ms Green on 6 July 2020 in private in the office and not on the factory floor.
[40] Mr Shaukat said in this meeting Ms Green was told the Respondent could not offer her shifts based on her availability and that the Respondent would not be continuing to nominate her for JobKeeper. He said Ms Green did not let them finish the conversation and walked out and went back to the factory floor and began to cause a lot of disruption.
[41] Mr Shaukat said that the conversations that Ms Healy is referring to did not happen. He said that although Ms Healy sat next to Ms Green, the factory floor is very noisy, and she could not have heard anything said to Ms Green unless voices were raised. Mr Shaukat said this information would have had to be told to Ms Healy by Ms Green.
[42] Mr Shaukat said that once an employee has been taken off JobKeeper for a week, they cannot be put back on JobKeeper. Ms Akoka confirmed this was correct. Ms Green said she did not have any knowledge of this rule.
[43] During cross examination, it was put to Mr Shaukat that it was unclear what the reason was for Ms Green’s termination, as his statement provided it was due to Ms Greens availability, however the reason given was also shortage of work. Mr Shaukat said there was a number of factors including that Ms Green was not eligible to be put forward for JobKeeper based on her availability.
[44] It was put to Mr Shaukat there was no issue with Ms Green’s availability other than the two-week period where she was approved to go on annual leave. Mr Shaukat said that because she was away, she could not be put forward for JobKeeper and had to be taken off JobKeeper. He said the only people employed at the factory were people on JobKeeper and permanent staff.
[45] Mr Shaukat was asked why she had to be taken off JobKeeper during the approved leave, and why she was not advised of any risk of being taken off JobKeeper prior to the leave being approved. Mr Shaukat said this was because the company was still learning about JobKeeper at the time. He said the he thought at that time that Ms Green could be taken off JobKeeper and put back on, however it was later found this was not the case.
[46] He said her hours had to be submitted, and because she did not work she had to be taken off JobKeeper.
[47] When asked why it was submitted Ms Green worked 29 hours during her sick leave instead of zero hours, Mr Shaukat said this was also because JobKeeper was new at the time.
[48] It was put to Mr Shaukat that despite the reason for Ms Green’s termination being cited as shortage of work, the Respondent had hired other staff after Ms Green was terminated. Mr Shaukat gave evidence that only one cutter was employed after Ms Green’s employment was terminated. He said there were no more machinists hired and said in fact the company was struggling to find work for the staff. He said some of the machinists were doing cleaning tasks.
[49] Mr Shaukat was asked why Ms Green could have been put on cleaning tasks instead of being terminated. Mr Shaukat did not appear to directly address this and said there were “ups and downs” and it was whoever was available did the cleaning when needed. It was put to Mr Shaukat Ms Green was always available, and that she was only terminated after she questioned working the 29 hours given the advice from the ATO. Mr Shaukat said he disagreed.
[50] I asked Mr Shaukat why it was the case Ms Green could not go back on JobKeeper after she was taken off. He said it was because this is how JobKeeper works. He said it was only discovered after she was taken off that she could not be put back on.
[51] Mr Shaukat was asked where the company got the advice that an employee could not go back on JobKeeper after being taken off. He said from HR which was later clarified to be Ms Akoka.
[52] Ms Akoka said she got the advice from payroll and appeared to later suggest her company does payroll for Vamos. Ms Akoka said that with JobKeeper once an employee was taken off for one week, you can’t put them back on, and Ms Akoka said it was just the rule. Ms Akoka was unable to point the Commission directly to a source that confirms this rule.
[53] Ms Green said she didn’t have any specific knowledge regarding the Respondent’s submission that once an employee is taken off JobKeeper after taking time off, that that employee cannot go back on JobKeeper.
[54] During cross-examination, Mr Shaukat said that he questions the validity of Ms Healy’s evidence given the distance between the seats, however confirmed he was not present during the conversation.
[55] Ms Akoka said she did not know for sure whether Ms Green would have been chosen to be let go, had she agreed to work the extra 29 hours.
[56] Ms Akoka gave evidence that the business started to pick up around September. Ms Akoka said there was a discussion around workload and that is why the decision was made to contact Ms Green and offer her shifts.
Small Business Fair Dismissal Code
[57] It was not disputed that the Respondent had 12 employees at the time of Ms Green’s dismissal and was therefore classified as a Small Business for the purpose of the Small Business Fair Dismissal Code.
[58] The Respondent submitted the dismissal was consistent with the Small Business Fair Dismissal Code as:
“The employee was a casual employee and at the time the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements due to the commercial impact of the COVID-19 pandemic. The employee was told that we cannot offer her shifts based on her availability and that we would not be continuing to nominate her for JobKeeper. We have had a recent increase in work volumes and shifts have become available. Pamela was called on the 23rd of September 2020 and offered an opportunity to take these shifts and she has not come back to us on her decision.”
[59] Ms Green submitted there was no evidence to suggest she was terminated for serious misconduct and no indication that the available work was being impacted especially given requests in the preceding weeks to do additional hours.
[60] The Small Business Fair Dismissal code states:
“Summary Dismissal
It is fair to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal.”
[61] Ms Akoka confirmed during the Hearing that the Respondent was of the view Ms Green was terminated due to shortage or work, and not for her capacity or conduct. This would indicate the Code does therefore not apply.
[62] However, for reasons explained below, I am of the view Ms Green was terminated because the Respondent formed the view that Ms Green should be terminated in response to her refusal to make up the 29 hours sick leave for which she received pay, and also because she was no longer eligible for JobKeeper because she was taken off JobKeeper after taking unpaid leave. I am not satisfied that Ms Green was terminated on the basis of a shortage of work and I will deal with this issue further below, however the issue does not relate to Ms Green’s capacity or conduct in any event.
[63] To the extent that the refusal to make up the 29 hours related to Ms Green’s conduct, it does not satisfy the relevant part of the Code as it did not justify immediate dismissal. The second reason appears not to relate to Ms Green’s capacity of conduct and on that basis the Code has no work to do. As the jurisdictional objection in relation to the Code has not been made out it is necessary to turn to the substantive matter.
[64] During the Hearing I asked Ms Akoka on what date did the Respondent consider the termination to have occurred. Ms Akoka said the Respondent did not consider that Ms Green was terminated. Ms Akoka said the intention was not to terminate Ms Green but rather for her to be taken off JobKeeper and stood down.
[65] It was put to Ms Akoka that issuing a separation certificate would indicate there was an end to the employment relationship. Ms Akoka said she only provided Ms Green with a separation certificate because she requested it.
[66] It is clear from the Respondent’s initial Form F3 that the Respondent was of the view at that time Ms Green had been terminated on 6 July 2020. The Respondent confirmed this in its Outline of Arguments – Merits document. The Respondent has not provided any evidence to suggest Ms Green had been stood down, rather than terminated, until halfway through the hearing.
[67] Ms Green gave unchallenged evidence that after her conversation with Mr Shaukat on 6 July when she went back to her desk, her manager Michelle then came and told her that Mr Shaukat wanted her gone immediately. This conduct on the part of the Respondent points to dismissal. Further, The Respondent also provided a separation certificate, that provided Ms Green was terminated due to shortage of work.
[68] I am satisfied Ms Green was terminated on 6 July 2020 and that it was at the initiative of the Employer.
[69] Section 387 of the Fair Work Act 2009 states:
“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.”
Valid reason
[70] The Respondent submitted there were a number of reasons for Ms Green’s dismissal, including shortage of work and Ms Green’s lack of availability. Vamos submitted Ms Green was told it could not offer her shifts based on her availability and that it would not be continuing to nominate her for JobKeeper.
[71] Ms Green said she believed her dismissal related directly to her questioning JobKeeper payments and having to repay hours and had nothing to do with shortage of work. She submitted leading up to 6 July she had been asked to stay back 30 minutes each day to make up the 29 hours. She submitted the Respondent would not be asking her to work extra hours if there was a shortage of work.
[72] I accept Ms Green’s submission that there was not a shortage or work, and that this was not the reason Ms Green was terminated. I accept, if Ms Green was being asked to stay back and work longer hours to make up for the JobKeeper payments she received when she was sick, then there was enough work for the Respondent to keep Ms Green employed in her position. I therefore find this was not a valid reason for dismissal.
[73] It is clear on the evidence of Mr Shaukat, that the reason Ms Green was terminated was because the Respondent formed the view Ms Green was no longer eligible for JobKeeper because she was taken off JobKeeper after taking unpaid leave. As stated I am of the view that this was the reason for Ms Green’s dismissal, in combination with the Respondents adverse view of Ms Green’s refusal to make up the 29 hours she was paid when she was sick
[74] Ms Akoka seemed to indicate in her oral evidence that the reason Ms Green’s hours on her annual leave were recorded at zero, was because Ms Green refused to make up the hours upon her return, and that this meant Ms Green had some knowledge she would not be eligible for JobKeeper on her return. However, Mr Shaukat’s evidence was that the Respondent was still learning about JobKeeper and had realised by the time Ms Green went on annual leave that it was only appropriate for the company to log the hours Ms Green actually worked during that two-week period.
[75] Mr Shaukat’s evidence was that the Respondent recorded Ms Green’s hours as zero for the period of her approved annual leave, and the Respondent mistakenly thought she could be put back on JobKeeper once she returned.
[76] I accept the Respondent logged Ms Green’s hours as zero because it was of the understanding that was what was required, and not because of a decision made by Ms Green not to make up the hours upon her return. My Shaukat’s evidence was clear on this point, and for reasons explained below I am of the view Ms Akoka only made reference to Ms Green making up hours in relation to her sick leave.
[77] The reasons for termination are not valid reasons. There is no impediment to a casual employee receiving JobKeeper payments when sick. There is also no impediment to a casual employee accessing a period of unpaid leave which on the evidence was agreed between the parties.
[78] The employer was not entitled to require Ms Green to make up the 29 hours for the period during which she was sick. There was also no evidence to support the claim that Ms Green was disqualified from being entitled to JobKeeper because she accessed a period of leave to visit her elderly mother.
[79] Ms Green said on the day of her dismissal she was not provided with the termination documents citing the reasons given for the dismissal. Ms Green confirmed this separation certificate notifying her of the termination was received 8 July 2020, stating the reason as shortage of work.
[80] However, for reasons explained above I have formed the view the real reason for Ms Green’s dismissal was due to the fact the Respondent formed the view she was no longer eligible for JobKeeper and because she refused to make up the 29 hours of sick leave.
[81] I am satisfied from Ms Akoka and Mr Shaukat that Ms Green was notified on 6 July 2020 that she was not eligible for JobKeeper. It is unclear why a different reason was provided at a later time, however it appears as though notice was provided to Ms Green.
[82] On the evidence it appears that the decision to terminate Ms Green was made at the earliest while she was still on annual leave, but more likely after she advised on the morning of 6 July 2020 that she would not agree to make up the 29 hours of sick leave. On Mr Shaukat’s evidence, Ms Green was told on 6 July that the decision was made while she was on leave that she was no longer eligible for JobKeeper.
[83] Mr Shaukat’s evidence was that upon being told this Ms Green left the meeting prematurely and returned to her work station. Ms Green did not appear to challenge this evidence.
[84] I am of the view that Ms Green may have been given an opportunity to respond to the reasons for her dismissal had she not left the meeting so quickly on 6 July 2020. However, it appears that even if she was provided with an opportunity to respond, the decision had been made. I am not inclined to the view that had Ms Green provided a response, it would have impacted the decision to terminate her as it had already been made.
[85] Ms Green said that since her termination, her work ethic and reliability have also been questioned by her former employer with an issue raised around her taking approved recreation leave. Ms Green submitted that during her employment she received no written or oral warning that work was slowing down or that her work ethic and reliability were in question.
[86] Ms Akoka seemed to indicate during the Hearing that Ms Green was warned back on the 18 June that if she wanted to take annual leave on JobKeeper she would need to make up the hours, and if she did not want to make up the hours, then she wouldn’t be eligible for JobKeeper.
[87] Ms Green submitted she was never notified that if she took annual leave there would be the possibility she would be taken off JobKeeper and that the conversation was purely in relation to her sick leave and not annual leave.
[88] I accept Ms Green’s version of events she was not warned during this conversation that her employment would be in jeopardy if she did not agree to make up the extra hours after her annual leave. I prefer Ms Green’s evidence that this conversation was regarding making up the time for sick leave, not about the annual leave.
[89] Ms Green’s evidence was consistent throughout the matter, where as Ms Akoka only seemed to claim she warned Ms Green about the prospect of being taken off JobKeeper at the end of the Hearing.
[90] Given it is not disputed Ms Green was not terminated for her performance I consider this criterion to be neutral.
[91] Ms Green said she did not receive any warning on the day of her dismissal, was not called prior to her shift starting and was working for at least an hour before being informed of her dismissal by the employer.
[92] Ms Green said she was not given the opportunity to ask to have a person present during the dismissal. Ms Green said she did not request a support person, and there was no indication there would be a meeting on 6 July 2020.
[93] I am satisfied there was no unreasonable refusal of a support person.
[94] Although the business only had 12 employees and is classified as a small business, there was no evidence that this had an effect on the dismissal process. Ms Akoka gave evidence that she is a HR specialist and takes care of all HR matters related to the Respondent. I am satisfied given there was a dedicated HR professional overseeing the dismissal there was likely no impact on the procedures followed in effecting the dismissal.
[95] On weighing the criteria under s.387, given I have concluded the Respondent did not have a valid reason for dismissal, and there are no other factors that might otherwise render the termination fair, I am satisfied the dismissal was harsh, unjust and unreasonable. I will now turn to remedy.
[96] Given Ms Green does not seek reinstatement I am satisfied that reinstatement would be inappropriate. I now turn to consideration of compensation. Section 392 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.”
Remuneration likely to have been received
[97] I have adopted the approach in Sprigg v Paul’s Licensed Festival Supermarket 1 to assessment of compensation. I am satisfied given her length of service and exemplary performance history it is likely had she not been terminated Ms Green would have remained in employment with Vamos for at least another 6 months.
[98] Ms Green was terminated on 6 July 2020, until which time she was receiving the JobKeeper payment of $750 a week. Ms Akoka gave evidence that the JobKeeper amount was reduced to $600 per week from 1 October 2020.
[99] The period from 6 July to 1 October is thirteen weeks. $750 per week multiplied by 13 equals $9,750. Had Ms Green continued to earn $600 per week from 1 October 2020 in the remainder of a six-month period she would have earned $600 per week multiplied by 13 weeks equalling $7,800. $9,750 added to $7,800 equals $17,550.
Mitigation
[100] Ms Green has given uncontested evidence about her efforts to mitigate her loss by signing up to job agencies after her termination.
[101] Ms Akoka said Ms Green was made an offer to return to her position from 23 Ocotber 2020 not on JobKeeper, as business has started to pick up again.
[102] Ms Green said after some consideration, she advised the Respondent she did not wish to return to the workplace.
[103] Ms Green gave unchallenged evidence that Mr Shaukat had made it clear Ms Green was never welcome back and that Ms Green would not work there while he was there. Ms Green said for this reason returning to Vamos and having Mr Shaukat as her superior would not be a comfortable position for herself.
[104] Ms Green also gave unchallenged evidence that Mr Shaukat had asked a current staff member to inform Ms Green that if she wrote an apology they may take Ma Green back. Ms Green submitted however she felt she did not do anything wrong and has no reason to apologise.
[105] Ms Green said she felt intimidated and bullied after being accused of being a “bludger” and felt uncomfortable returning to work for the business.
[106] I accept in the circumstances it was reasonable for Ms Green not to accept her old job back as it appears the work relationship has broken down and I accept her decision it would not be in her best interests to return to that environment. I therefore make no deductions in relation to mitigation of loss.
Viability
[107] There has been no suggestion from Vamos an order for compensation will affect the viability of their business.
Other employment
[108] Ms Green has given evidence she has not received any income from other employment during the period between the dismissal and the making of the order for compensation. I make no deduction.
Income reasonably likely to be so earned
[109] Ms Green gave evidence that she was hopeful she was going to be able to secure other employment through a former colleague. Miss Green was unable to advise when this was likely to occur.
[110] I am satisfied based on the above evidence and the fact Ms Green is regarded as being highly skilled in her field of work, it is likely Ms Green will secure employment in the not too distant future. I find it is reasonably likely she will have found further employment by December 2020. Assuming Ms Green secures other employment by December 2020 Ms Green would have been not been employed for a further 8 weeks after 1 October 2020, being for the months of October and November. On that basis it is likely Ms Green will secure work by December, Ms Green will have been out of work for a period of 21 weeks. On that basis I intend to deduct from the amount of $17,550 an amount of $3000 which is equal to five weeks pay at the rate of $600 per week to ensure that the amount of compensation equates to the likely period when no remuneration is earned. With the deduction of $3000 the amount is reduced to $14,550.
Misconduct
[111] There is no evidence that Ms Green engaged in any misconduct and I make no deduction in relation to this.
Compensation cap
[112] The amount of $14,550 does not exceed the compensation cap. An order 2 will issue separately and concurrently with this decision that The Trustee for Vamos International Discretionary T/A Vamos Pty Ltd pay to Ms Pamela Green the sum of $14,550 gross taxed according to law within 14 days.
COMMISSIONER
Appearances:
Ms Rechelle Darkin appearing on behalf of the Applicant.
Ms Leah Akoka appearing on behalf of the Respondent.
Hearing details:
Brisbane,
2020:
October 27
Printed by authority of the Commonwealth Government Printer
<PR724269>
1 (1998) 88 IR 21.