Alanna Maguire v The Trustee for the Eros Ouzeri Discretionary Unit Trust T/A Eros Ouzeri

[2013] FWC 3917

[2013] FWC 3917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Alanna Maguire
v
The Trustee for The Eros Ouzeri Discretionary Unit Trust T/A Eros Ouzeri
(U2013/7306)

COMMISSIONER HAMPTON ADELAIDE, 26 JUNE 2013

Termination of employment - no appearance or participation by respondent - opportunity and notice provided to employer - matter determined based upon evidence and submissions filed by the applicant - dismissal unfair - remedy - reinstatement not appropriate - compensation awarded.

1. BACKGROUND

[1] This matter concerns an application pursuant to s.394 of the Fair Work Act 2009 (the Act) by Ms Alanna Maguire (the applicant) seeking a remedy for an alleged unfair dismissal. The respondent is The Trustee for The Eros Ouzeri Discretionary Unit Trust T/A Eros Ouzeri. 1

[2] The respondent has not appeared or participated in any of the proceedings or processes associated with this application.

[3] I am satisfied that the originating application, an application to amend the name of the respondent, notices and directions from the Commission, and the evidence and submissions filed on behalf of the applicant have been properly served and notified upon the respondent 2 as required by the Fair Work Rules 2010.

[4] The applicant’s dismissal took place on 16 February 2013 and the application in this matter was lodged with the Commission on 8 March 2013. As a result, the application was made within the requisite time period 3 and is valid.

[5] A directions conference was convened by the Commission on 9 May 2013. As part of directions subsequently issued by the Commission, 4 I determined that if the respondent did not file and serve materials (in response to submissions and evidence to be filed by the applicant) by 18 June 2013, this application would be determined based upon the materials filed by the applicant without further notice or hearing.

[6] The applicant filed and served comprehensive submissions and evidence by 7 June 2013 as directed. The respondent has not complied with the directions or otherwise made any application to the Commission.

[7] Section 397 of the Act provides as follows:

“397 Matters involving contested facts

The FWC must conduct a conference or hold a hearing in relation to a matter arising under this Part if, and to the extent that, the matter involves facts the existence of which is in dispute.

[8] Section 600 of the Act also provides as follows:

“600 Determining matters in the absence of a person

The FWC may determine a matter before it in the absence of a person who has been required to attend before it.”

[9] In all of the circumstances evident in this matter, I considered that it was appropriate to deal with the application on the basis of the submissions and evidence filed and served by the applicant in accordance with the procedural directions. Further, I was not required to conduct a conference or hearing to determine the matter given the absence of a dispute about the facts.

[10] Notwithstanding the above approach, it remains necessary for the applicant to establish any jurisdictional and merit considerations arising from the Act.

2. THE APPLICANT’S CASE

[11] Ms Purdy, who represented the applicant with permission, 5 submitted that the applicant was a person protected from unfair dismissal by virtue of s.382, had been dismissed within the meaning of s.386 and that such was unfair having regard to the considerations of s.387 of the Act.

[12] Given that the employer was likely to be a small business employer within the meaning of s.23 of the Act, the applicant also contended in any event that the dismissal was not consistent with the Small Business Fair Dismissal Code (the Code).

[13] The applicant provided a sworn witness statement and sworn statements from two other former employees who had worked with the applicant at the respondent’s restaurant and were witnesses to the events that are said to have led to the applicant’s dismissal. One of these additional statements was provided by Ms Evonne Hadges, who worked for the respondent for about four years until around January of this year and described herself as being romantically attached to the respondent’s “owner”, Mr George Michail at the time. The other statement was provided by Mr Frank Hero, who was the respondent’s Head Chef for about five years until April 2013. Mr Hero is now the applicant’s fiancée.

[14] The applicant sought compensation in lieu of reinstatement.

[15] The following factual basis has been established as part of the applicant’s case:

● The applicant worked in the respondent’s restaurant from around February 2009, initially in the role as a Barperson but then in a waiting position. The applicant gained accreditation as a Responsible Person 6 late in 2012.

● The applicant was engaged as a casual employee but regularly worked between 20 and 35 hours each week according to a roster, which generally involved working Wednesdays through to Saturdays, with occasional Sunday shifts.

● The applicant was considered to be a good and reliable worker and there is no indication of any work performance or conduct concerns.

● Requests for rostered days off would be made in advance by writing a note in the bookings diary.

● The applicant and Mr Hero became a couple in August 2009 and continued to work together as part of the staff at the respondent’s restaurant. Since that time, the applicant and Mr Hero regularly took Valentine’s Day off and this was permitted by the respondent without apparent concerns.

● In 2013, the applicant again sought approval for the day off on Valentine’s day and the applicant understood that both she and Mr Hero had been given the day off as a result of discussions around that time and a supportive text message provided by Mr Michail. Mr Michail was the person in charge of the respondent’s restaurant and is the ostensible decision maker.

● The applicant and Mr Hero both had Valentine’s Day, 14 February 2013, off from working at the respondent’s restaurant and became engaged on that day.

● During the evening of Valentine’s Day, Mr Hero received a series of text messages from Mr Michail concerning the fact that he had taken the day off.

● On Friday 15 February 2013, the applicant and Mr Hero both worked. The applicant was due to work a split shift on that day and when attending in the morning the applicant was congratulated on the engagement by her colleagues, with the exception of Mr Michail. During the course of that day, Mr Hero gave two weeks notice of his resignation to Mr Michail.

● During the first part of the applicant’s shift, the topic of the engagement arose and Mr Michail said words to the applicant, to the effect of “Congratulations on fucking up the restaurant”. The applicant responded to the effect that she was not required to work every day and that Mr Michail had advised that he would be working to cover her absence on Valentine’s Day.

● The applicant went home following the first part of her split shift at around 4.30pm on 15 February. The following the SMS text exchange between the applicant (A) and Mr Michail’s (M) mobile phone took place:

M: ‘Are you quitting to (sic)’

A: ‘No’

M: ‘Be nice then grumpy’

● The applicant returned to work at around 6.30pm and worked the balance of her split shift but declined to stay after work and have a drink with Mr Michail and another staff member.

● The applicant was rostered to work on Saturday 16 February 2013 at around 4.30pm. Shortly before noon on that day, the applicant was advised by Mr Hero that she did not need to go into work, had been fired, and that Mr Michail had informed another employee (Joss Kitchen) to tell Mr Hero to tell the applicant.

● Joss Kitchen (K) advised the applicant by SMS text that the applicant’s shift had been cancelled and the following exchange took place with the applicant (A):

K: ‘Hey Allana, it’s Joss. I’m sorry about this but i’ve been told to cancel your 4.30 today’

A: ‘no worries...frank said u were told to tell him im fired’

K: ‘Yeah, i was told to take you off today, i don’t know about tomorrow but it sound like you won’t be on the roster next week’

● The following SMS text exchange between the applicant (A) and Mr Michail (M) took place shortly thereafter:

A: ‘frank said that joss was told to pass on the message that im no longer required to work... is this true?’

M: ‘Yes bye have a good life’

● The decision to dismiss the applicant was also directly confirmed to Ms Hadges by Mr Michail.

● In reference to the dismissal of the applicant, Mr Hero was subsequently advised by Mr Michail to the effect of “if you’re not here, why should I keep Alanna (the applicant) and give her a job”.

● Since that time the applicant has been actively seeking alternative work and applied for about 15 positions. However, she has only worked some 22.5 hours and received $651.54 in gross wages.

● The applicant is concerned that the circumstances of her dismissal and the nature of the restaurant industry are affecting her endeavours to find further work in the hospitality industry in Adelaide.

● The applicant, who is a university student, has been in receipt of Youth Allowance payments, however these are adjusted according to other income.

● At the time of the applicant’s dismissal, the respondent employed between 12 and 15 staff.

[16] All of the above contentions are supported by the evidence before the Commission.

3. CONSIDERATION OF JURISDICTION AND MERIT

3.1 Was the applicant protected from unfair dismissal?

[17] Section 382 of the Act provides as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[18] The minimum period of employment is established by s.383 according to the size of the employer. In any event, the applicant’s service exceeds the greater 12 months period required in the case of a small business.

[19] Given the nature of the applicant’s casual service, it was regular and systematic within the meaning of s.384(2) of the Act and therefore qualifies as continuous service for present purposes.

[20] The applicant’s rate of earnings is below the high income threshold and, in any event, her employment would have been covered by the Restaurant Industry Award 2010.

[21] The applicant was therefore protected from unfair dismissal.

3.2 Was the applicant dismissed?

[22] Section 386 of the Act provides as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[23] The applicant was dismissed on the initiative of the respondent. This decision was made by Mr Michail and communicated to the applicant via the other employees and confirmed in a subsequent text message. The respondent acted with the intention of bringing the applicant’s employment to an end. The exceptions provided by s.386(2) of the Act do not apply.

[24] The applicant was dismissed.

3.3 Was the applicant’s dismissal unfair?

[25] Section 385 of the Act provides as follows:

“385 What is an unfair dismissal

(1) 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.”

[26] I have found that the applicant was dismissed by the respondent. The employer is likely to be a small business within the meaning of the Act. 7 Accordingly, I must consider whether the dismissal was consistent with the Code.8 The Code provides as follows:

“Summary Dismissal

It is fair for an employer 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. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[27] The applicant’s dismissal would be considered to be a summary dismissal within the meaning of the Code. No basis for such a dismissal has been provided or is apparent from any of the material before the Commission.

[28] Even if considered under any other grounds cited in the Code, no basis exists and the applicant’s dismissal was not consistent with that Code.

[29] This is not a matter involving a redundancy. As a result of the above, I must consider whether the dismissal was harsh, unjust or unreasonable.

[30] The Act relevantly provides as follows:

“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.”

[31] It is clear that s.387 of the Act contemplates that an overall assessment as to the nature of the dismissal must be made by the Fair Work Commission. In so doing, the Act sets out a number of considerations that must, where relevant, be weighed up in totality. 9

[32] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).

[33] There are only two potential bases for the dismissal that could be inferred from the evidence and these relate to the absence from work on Valentine’s Day and/or the decision of Mr Hero to resign as Head Chef. If based upon either scenario the dismissal would be accurately described as being capricious and unreasonable.

[34] The applicant had permission to have Valentine’s Day off and any decision to dismiss her due to her relationship with Mr Hero would have been totally inappropriate.

[35] Based upon the only material before the Commission there was no valid reason for the applicant’s dismissal.

Section 387(b) – whether the applicant was notified of the reasons for dismissal.

[36] The applicant was not advised by the respondent of any reason for dismissal.

Section 387(c) – whether the applicant was given an opportunity to respond to any reason related to her capacity or conduct.

[37] There is no direct evidence of concerns about the applicant’s capacity or conduct. It might well be implied that there were concerns about her conduct in not working on Valentine’s Day. If such concerns existed, no opportunity to address those concerns was given to the applicant.

Section 387(d) – any unreasonable refusal by the respondent to allow the applicant to have a support person present to assist in any discussions relating to her dismissal.

[38] There was no discussion with the applicant and no request for a support person arose.

Section 387(e) – if the dismissal is related to unsatisfactory performance by the applicant – whether she has been warned about that unsatisfactory performance before the dismissal.

[39] It is not clear that the dismissal is related to unsatisfactory performance in the sense contemplated by s.378(e) of the Act. In any event, the applicant was not warned about such matters.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(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.

[40] The manner in which the applicant’s dismissal was handled by the respondent was disrespectful and offensive.

[41] I am prepared to assume that the respondent is a small business employer and had no access to dedicated human resource expertise for present purposes. This is a relevant consideration and must be taken into account to the degree that it would likely impact upon the procedures that were followed by the respondent.

[42] In this case, I have found there to be a total absence of both a valid reason and any form of fair process.

[43] In all of the circumstances I consider that the applicant’s dismissal was harsh, unjust and unreasonable. It was accordingly unfair within the meaning of the Act.

4. CONSIDERATION OF THE REMEDY

[44] Division 4 of Part 3-2 of the Act provides as follows:

Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

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. 10

(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.

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

[45] The prerequisites of ss.390(1) and (2) have been met in this case.

[46] Section 390 makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. In this case, the applicant does not seek reinstatement and given all of the prevailing circumstances I accept that that it would not be appropriate.

[47] As a result, I need to consider whether compensation is appropriate and if so, to what extent.

[48] Section 392(2) of the Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). Without detracting from the overall assessment required by the Act, 11 it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of the employer’s enterprise

[49] I have nothing from the respondent to form any view on this issue. I have however considered the relatively small size of the employer in terms of the other relevant considerations touching upon the issue of remedy.

The length of the person’s service with the employer

[50] The applicant was employed with the respondent for a period of some four years. This is a reasonable period and I have taken this into account in determining the compensation, including when making an assessment of the remuneration that would likely have been received if not for the termination.

The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[51] This involves in part a consideration of the likely duration of the applicant’s employment in the absence of what I found to have been an unfair dismissal.

[52] This is not an easy assessment given the nature of the evidence before the Commission.

[53] I do need to consider the nature of the applicant’s casual engagement and the characteristics of the restaurant industry in any projection of the remuneration that the applicant would have been likely to receive if she had not been dismissed. This includes the fact that the employment to that point had been regular over a reasonable length of time and the applicant had a genuine expectation of ongoing employment with the respondent. There is also no suggestion of any legitimate performance or conduct concerns. However, I also need to take into account the potential for the applicant to have eventually been dismissed or alternatively, resigned given circumstances at the restaurant.

[54] In all of the evident circumstances it is reasonable to assess the compensation in this matter on the basis that the applicant would, on the balance of probabilities, have remained in employment for a further period of some sixteen weeks.

[55] The applicant was paid a base hourly rate of $20.66 however she received higher rates for evening work and on weekends. Based upon the pay slips provided by the applicant, an average of $660.23 per week (gross) was paid to the applicant.

[56] Accordingly, this projected period amounts to $10,564 in likely lost remuneration for present purposes.

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[57] The applicant has undertaken extensive efforts to seek further employment. This has only been partially successful and there is no basis for any reduction in the level of compensation having regard to this consideration.

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

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

[58] The applicant has received some $651.54 from other work and this should be taken into account.

[59] The applicant was not in employment at the time of filing the evidence and there is only a small chance of income being received in the short period between the making of the order for compensation and the actual compensation.

Any other matter that the FWC considers relevant and the remaining statutory parameters

[60] I have taken into account the projected nature of the anticipated loss of remuneration (s.392(2)(c)) and the actual amounts of alternative income (s.392(2)(e)). In that light, I do not need to make a further allowance for contingencies in this matter. 12

[61] There is no misconduct that would need to be taken into account as provided by s.392(3) of the Act.

[62] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[63] The applicant has been in receipt of some social security payments. However, as the compensation figure is likely to be taken into account in any future claims for such payments, and a level of such payments was being made during the employment, I will not take these payments into account for present purposes.

[64] After taking into account each of the relevant considerations, I find that compensation calculated as follows is appropriate (rounded whole dollars only):

● The projected amount of income in the absence of dismissal	$10,564
● Deduct employment income received since dismissal	($652)
● Total compensation payment	$9,912

[65] The amount of compensation that I have determined is less than the maximum prescribed by s.392(5) of the Act as applied in this matter. 13 This compensation amount is also appropriate having regard to all of the circumstances of this matter.14

6. CONCLUSIONS

[66] I find that the dismissal of Ms Maguire by the respondent was unfair within the meaning of the Act.

[67] I find that reinstatement is not an appropriate remedy in this case.

[68] I find that compensation to the value of $9,912 (with deduction for taxation) is appropriate and I have ordered 15 that it be paid by the respondent within 14 days of this decision.

COMMISSIONER

Appearances:

A Purdy of the Young Workers Legal Service with permission on behalf of Alanna Maguire.

No appearance for the respondent.

Conference details:

2013

Adelaide

9 May.

Final written submissions:

2013

June 7.

 1   Following an application to amend the identity of the respondent, which was served upon both the originally named respondent and the proposed new respondent, and subject to separate notice from the Commission, leave was given to amend the application to cite this employer as the respondent party.

 2   The service and notification of the respondent has included both the original and amended identities and Mr Michail personally. The receipt of the documents by or on behalf of the respondent was also confirmed directly by an officer of the Commission.

 3 Section 394(2)(a) of the Act.

 4   On 31 May 2013.

 5   Permission to be represented was granted pursuant to s.596 of the Act during the direction conference.

 6   Under the relevant liquor licensing laws.

 7   A small business employer was defined as having less than 15 employees at the relevant time.

 8   Established by s.388 of the Act.

 9   Explanatory Memorandum Fair Work Bill 2008 para 1541.

 10   Note: the subsection 392(5) amount was indexed to $61,650 from 1 July 2012 - as was relevant given the timing of this application.

 11   Smith and Others v Moore Paragon Australia Ltd (2004) AIRC Print PR942856.

 12   See the discussion of contingencies in Bowden v Ottrey Hones Cobram and Districts Retirement Villages Inc. T/A Ottrey Lodge[2013] FWCFB 431, 4 February 2013 per Acton SDP, Smith DP and Ryan C at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, 17 April 2000 per Ross VP, Williams SDP and Gay C and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, 31 October 2001 per Williams SDP, Acton SDP and Gay C.

 13   The maximum compensation limit in this case would be $17,166.

 14   Smith and Others v Moore Paragon Australia Ltd (2004) AIRC Print PR942856 at par [32].

 15   PR538228.

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