FWC 1346
The attached document replaces the document previously issued with the above code on 12 March 2021.
In paragraph , the date 18 January 2020 has been amended to 17 January 2021.
Associate to Commissioner Lee.
Dated 15 March 2021.
| FWC 1346 [Note: An appeal pursuant to s.604 (C2021/1395) was lodged against this decision - refer to Full Bench decision dated 13 May 2021 [ FWCFB 2689] for the result of the appeal.]|
|FAIR WORK COMMISSION|
Fair Work Act 2009
Bed Bath N’ Table
MELBOURNE, 12 MARCH 2021
Application for an unfair dismissal remedy – compensation
 On 4 March 2019, Ms Angele Chandler (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Bed Bath n’ Table Pty Ltd (Respondent).
 On 13 August 2020, I issued a decision [ FWC 3706] in which I determined that I was satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act for reasons contained therein. This decision deals with a consideration of the remedy, if any, to apply.
 Directions were issued on 17 August 2020, requiring the Applicant to file with the Commission documentary evidence relevant to the factors set out in the FW Act, and in particular:
• Evidence of the amount of any remuneration earned by the Applicant from employment or other work since the dismissal; and
• Evidence of the efforts of the Applicant (if any) to mitigate the loss suffered by the person because of the dismissal (for example, any job applications that the Applicant has made since the termination).
 The matter was scheduled for a further hearing on 28 August 2020 to allow both parties to be heard on the matter of compensation. The Applicant filed material, as did the Respondent despite not being required to pursuant to the directions.
 Subsequent to the hearing on 28 August 2020, the Applicant lodged an appeal against the decision of 13 August 2020 to not order reinstatement. With agreement of the parties, I delayed my consideration on the question of compensation until the appeal was determined.
 The Full Bench of the Commission heard the appeal, and on 21 December 2020, a determination was made and permission to appeal was refused. 1
 Subsequent to the Full Bench decision, on 17 January 2021 the Applicant made further submissions on the matter of compensation. I provided the Respondent a right to reply to those submissions by 29 January 2021. The Respondent did not file any material in response.
 Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…” 2
 The Applicant’s position is that she should be compensated for “the full 26 weeks that is within the jurisdiction of the Commission” 3 because there would have been ongoing employment; there were flaws in the process to effect the dismissal; and that the recording of conversations was in the decision in U2018/2693 found not to be a barrier, in the circumstances of that case, to the Applicant continuing in employment were it not for the dismissal.4
 The Respondent’s submits that the Commission should not make an order for compensation as:
• The Commission has found that the Applicant’s conduct in covertly recording the conversation was a valid reason.
• That the failure to notify the Applicant, or provide an opportunity to respond, is understandable given the conduct was not discovered until after the termination.
• That it can be reasonably concluded that if the Applicant had the opportunity to respond, the response would not have been different to that proffered by the Applicant at the hearing. 5
 The Respondent relied on three reasons for the dismissal of the Applicant at the time that the dismissal occurred. I have determined that none of those reasons were a valid reason for dismissal. The only reason that was a valid reason was the discovery, post dismissal, of the recording of the conversation between the Applicant and Ms Faill.
 The Respondent was entitled to rely on the fact that the Applicant made a covert recording as a valid reason, notwithstanding it had no knowledge of this fact before the dismissal.
 As was stated by the Full Bench in APS Group (Placements) Pty Ltd v O’Loughlin, if the employer seeks to rely on a reason for dismissal other than the reason given or relied upon at the time of the dismissal “they will have to contend with the consequences of not giving the employee an opportunity to respond to such reason.” 6
 The Respondent’s submissions seek to avoid any consequence of the failure to accord procedural fairness to the Applicant. The Applicant has suffered loss by reason of being unfairly dismissed. An award of compensation is appropriate in the circumstances.
 In all of the circumstances, I consider that an order for payment of compensation is appropriate because the Applicant should be compensated for losses reasonably attributed to the unfair dismissal.
 Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a) the effect of the order on the viability of the Respondent’s enterprise;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
 My consideration of all the circumstances of the case is set out below.
 As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 7 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages.8”9
Section 392(2)(a) – Effect of the order on the viability of the Respondent’s enterprise
 There are no submissions or evidence that an order for compensation would not have an effect on the viability of the employer’s enterprise. This factor is not a relevant consideration.
 The Applicant was employed as a casual employee on a regular and systematic basis. The Applicant worked her first shift as a casual employee of the Respondent on 25 June 2018, and her last shift was 8 months and 3 days later on 28 February 2019.
 This is a relatively brief period of employment. The Respondent drew attention to that fact, 10 but did not assert that this was a basis to reduce the amount of compensation. I accept that a short period of service may warrant reducing the amount of compensation ordered. However, I am not satisfied that it is appropriate to do so in this case.
 As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.” 11
 During the hearing, I gave the Applicant an opportunity to make submissions regarding the remuneration that she would have received, or would have been likely to receive, if she had not been dismissed. The Applicant stated that:
“My remedy has always been reinstatement, so I was planning on being there for a long time.” 12
 The Respondent submits that the Applicant’s employment would have been terminated by the Respondent at the next available opportunity had it been aware of the Applicant’s conduct in covertly recording conversations and that the Commission should conclude that the termination would have occurred before the Applicant worked another shift with the Respondent.
 The Respondent submits that even if the Commission concludes that it would have required further time for the Respondent to effect the termination of the Applicant’s employment in a fair manner, the Respondent contends that, at the latest, this would have occurred within two weeks after 1 March 2019. In that period the Applicant was only rostered to work a single five-hour shift on 4 March 2019. Therefore, in the alternative, the Respondent contends any order for compensation should be for the payment of a single five hour shift the Applicant would have worked between 1 March 2019 and 15 March 2019. 13
 Having considered this factor, I agree that were it not for the termination of employment of the Applicant and her provision of the recordings as part of her evidence in the case, the Respondent may well have become aware of the recordings and dismissal could have been the result. However, I do not accept this would have necessarily occurred, and if it did, that it would have necessarily occurred within the time frame urged on me by the Respondent.
 The Respondent also submits that given the Applicant was seeking further employment prior to the termination of her employment with the Respondent, this suggests that the Applicant would have soon left employment with the Respondent. However, the Applicant made submissions during the hearing that:
“I was just looking for additional work. And there’s quite a few people that actually work at the store that had a second job. And there’s nothing in my contract that says that I can’t have more than one job, given that the position with Bed Bath N’ Table was casual, and yes, the hours that I was receiving was between 20, 25 hours, so there was no reason why I couldn’t, you know, get additional employment elsewhere.” 14
 I accept that in circumstances where the Applicant was being offered only one shift per week, she was entitled to seek additional employment, and that this does not necessarily mean her employment would have ended with the Respondent. However, it was clear that the employment relationship was under some strain as a result of the small amount of work being offered to the Applicant around the time of her dismissal.
 Taking into account all of the circumstances, I am satisfied that the employment relationship would not have continued for a significant period of time and would have continued for no longer than two months.
 At the time of dismissal, the Applicant was only being offered one 5-hour shift per week but was agitating for additional shifts to be provided. Prior to early 2019, the Applicant regularly worked 20 – 25 hours per week. The Applicant’s reduction of shifts was, according to the Respondent, a result of:
“The difficulty with the Applicant’s vehement protests regarding her hours of work are that the reduction of actual hours worked in February in particular were due to a significant extent to:
a) the Applicant’s limited availability during that month; and
b) the Applicant’s refusal to accept shift at the Moonee Ponds store; and
c) the Applicant being absent due to illness for two days.
In the four-week period immediately before the peak Christmas trade period commenced at the start of December 2018, the Applicant worked a total of 60.25 hours. In the four-week period commencing on 28 January 2019 and continuing to the cessation of her employment the Applicant worked 50 hours. She was also absent from work for two shifts and rejected another 5-hour shift. The Applicant’s discontent was founded on a false understanding of how her hours of work had changed (See Attachment A to these submissions which sets out the Applicant’s hours worked).” 15
 Assuming the Applicant was available to work, unlike the position in February, then it is likely that the Applicant would have been provided with a roster similar to that she had been working prior to December 2018 and the early months of 2019.
 At the time of dismissal, the Applicant was earning an ordinary rate of $25.98 per hour (Monday to Friday), and attracted penalties for hours worked on Saturdays, Sundays and Public Holidays. 16
 The Fortnightly Wage History provided by the Respondent shows that in the period from October to November 2018, the Applicant was working an average of approximately 40 hours per fortnight. As such, the Applicant was working an average of 20 hours per week. Based on the Applicant’s wages for these months, her average wage per fortnightly period from October to November 2018 was $1,123.91.
 I have referred to these months as they represent the Applicant’s ordinary hours of work prior to the “Peak Trading Period” in December 2018 and the reduction of her hours in the early months of 2019. It is likely that the Applicant would have started receiving shifts of a similar quantum to that she was receiving in these months of October and November 2018.
 As such, I am satisfied that the Applicant would have worked an average of 40 hours per fortnight for two months beyond the date the dismissal took effect. In that period the Applicant would have received a total income of $4,495.64 less tax, plus superannuation of 9.5%. I have determined that this is the income the Applicant would have received or would have been likely to receive if she had not been dismissed.
 The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal. 17 What is reasonable depends on the circumstances of the case.18
 The Applicant filed with the Commission a total of 51 screen shots showing unsuccessful job applications. 49 out of the 51 applications were made after her dismissal on 1 March 2019, the first being made on 3 April 2019, then on 12 June 2019. The subsequent applications were all made from July 2019 and thereafter.
 During the hearing I indicated to the Applicant that the Respondent stated in their submissions that I should take into account that there weren’t many applications made in the time after she was dismissed, and then there were not other attempts until later in July of 2019, to which the Applicant responded as follows:
“Well, the reason that I wasn’t actively looking for work is because my primary remedy was reinstatement, so I wasn’t going to go and apply for a job, and then having to leave that place. So it was - I had limitations as far as looking just for, you know, casual work.” 19
 The Applicant also indicated that the “people I worked with in my suburb keep a look out for any vacancies within their employment for me, unfortunately this cannot be captured as proof.” 20
 The Respondent accepted that the information provided by the Applicant demonstrates some effort to obtain alternative employment, but submitted that there are two critical points to be made in relation to that information:
• The first is that the Applicant commenced seeking employment prior to the termination of her employment.
• The second is that the Applicant made no substantial attempts to find alternative employment in the months after the termination.
 The Respondent asserts that given that in the five-month period following her dismissal the Applicant applied for three roles, the Commission is entitled to conclude that, notwithstanding the later attempts by the Applicant to find work, she has failed to properly mitigate the impact of her dismissal.
 I am satisfied having regard to the significant number of job applications made by the Applicant over the long period of time that this matter has been before the Commission, that the evidence of the efforts of the Applicant to mitigate her loss have been reasonable steps.
 I am satisfied that the Applicant made reasonable efforts to mitigate her loss. It is not appropriate to make a deduction from the compensation amount.
 It is only the remuneration earned by the employee since their dismissal until the end of their anticipated period of employment that is relevant. The Applicant earned no remuneration in that period, 21 and so no deduction is to be made from the compensation amount of $4,495.64.
 The first and second Sprigg factors are addressed above under the headings for s.392(2)(c) and 392(2)(e) respectively.
 The third step in Sprigg concerns whether any allowance should be made for contingencies. Contingencies only apply to the anticipated period of employment. 22 In this case, the anticipated period of employment has passed and therefore no deduction for contingencies is appropriate.
 The fourth step concerns taxation. While the Commission is obliged to consider the impact of taxation in determining compensation, there is no requirement that the Commission deduct taxation from the total compensation ordered. 23 I have determined a deduction for taxation is not appropriate in the circumstances.
 The fifth step concerns application of the statutory compensation cap, which is addressed below.
 Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.” 24 I don’t consider there are any other factors that need to be taken into account other than those set out below. I also consider the amount of $4,495.64 is an appropriate amount of compensation in all the circumstances of his matter. This leaves an amount of $4,495.64 less taxation as required by law plus superannuation of 9.5%.
Compensation – is the amount to be reduced on account of misconduct?
 If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by s.392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
 In this matter, I am satisfied that Applicant engaged in misconduct by making the covert recordings. However, the consideration under s.392(3) is confined to misconduct that contributed to the employer’s decision to dismiss. As the Respondent did not know of the recordings, it could not and did not contribute to the decision to dismiss the Applicant. In the circumstances it is not appropriate to deduct an amount for misconduct.
 This leaves an amount of $4,495.64 gross, less tax as required by law, plus 9.5% superannuation. This accords a fair go all round to both the Respondent and the Applicant.
 This amount is less than either 6 months remuneration or the high income threshold and no deduction is required to account for that.
 In light of the above, an order will be issued concurrently with this decision that the Respondent pay $4,495.64 gross less taxation as required by law, plus 9.5% superannuation to the Applicant in lieu of reinstatement within 14 days of the date of this decision.
Ms A Chandler on behalf of herself
Mr N Tindley on behalf of the Respondent
28 August (by Telephone via Microsoft Teams)
Printed by authority of the Commonwealth Government Printer
1  FWCFB 6714 at .
2 Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter  FWCFB 7198, .
3 Applicant’s submissions on remedy dated 17 January 2021.
4 Cathy (Yaqin) Chen v TIOBE Pty Ltd T/A TIOBE  FWC 1282.
5 Respondent’s submissions on remedy dated 28 August 2020.
6 APS Group (Placements) Pty Ltd v O’Loughlin  FWAFB 5230 (Lawler VP, O’Callaghan SDP, Roberts C, 8 August 2011) at para. 51, [(2011) 209 IR 351].
7 (1998) 88 IR 21.
8  FWCFB 431.
9 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries  FWCFB 7206, .
11 He v Lewin  FCAFC 161, .
13 Respondent’s submissions on remedy dated 28 August 2020.
15 Court book, page 258.
16 Transactional History - Employment Duration (Fortnightly Wages History); Transactional History - Employment Duration (Fortnightly Wages Report).
17 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002),  citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), .
18 Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002),  citing Payzu Ltd v Saunders  2 KB 581.
20 Attachment to email dated 20 August 2020.
21 PN49 – PN55.
22 Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001) at ; citing Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at .
23 Per Ellawala v Australian Postal Corporation, Print S5109 (AIRCFB, Ross VP, Williams SDP, Cay C, 17 April 2000), Print S5109 at .
24 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries  FWCFB 7206, .