Amara Somasundaram v Department of Education & Training, North-Eastern Victoria Region

[2016] FWC 8326

[2016] FWC 8326

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amara Somasundaram
v
Department of Education & Training, North-Eastern Victoria Region
(U2015/2980)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 NOVEMBER 2016

Application for relief from unfair dismissal - back pay.

[1] On 8 October 2015, I relevantly issued the following orders 1:

“[3] Pursuant to s.391(3) of the Act, the Department pay to Ms Somasundaram an amount for remuneration lost or likely to have been lost because of the dismissal from the date of termination of employment to the date of reinstatement.

[4] In relation to paragraph [3], the parties are to confer as to the amount of Ms Somasundaram’s loss of income and if the parties fail to agree on the amount of loss of income, Ms Somasundaram shall file submissions in the Commission setting out the basis for the amount claimed. The Department will be then afforded an opportunity to respond.”

[2] On 17 October 2016, Ms Somasundaram contacted my chambers and advised that the parties had not reached an agreement on the amount to be paid to Ms Somasundaram and she sought the assistance of the Commission.

[3] The parties filed submissions in support of their respective positions and a telephone hearing was held today to provide the parties with an opportunity to speak to their submissions.

[4] There is no dispute between the parties as to the gross amount to be paid to Ms Somasundaram.

[5] Ms Somasundaram disputes how the Department assessed the amounts of taxation to be deducted and complained of its failure to adjust her 2014/15 group certificate to account for the monies that should have been attributed to that financial year. She complains that the amount of monies attributed to the 2015/16 were higher than it should have been because it included monies that were for the 2014/15 financial year. This, she submitted, caused her to pay a higher rate of tax and limited her capacity to make deductions for the legal costs she incurred in the proceedings.

[6] The Department submitted that it acted in accordance with Australian Taxation law. It submitted that it was able to provide an amended group certificate for the 2014/15 financial year because Ms Somasundaram was required to repay the amount paid to her as notice and long service leave and therefore she was not required to pay the tax that had been forwarded to the taxation office. It submitted that it was required by law to treat the amount received by Ms Somasundaram in the 2015/16 financial year as having been received in that year and could not apportion some of it to the 2014/15 financial year.

[7] Ms Somasundaram submitted that if the Department could provide an amended group certificate in the circumstances described above it could have further amended it to apportion the amount that she would have received in the financial year 2014/15 had she not been dismissed.

[8] The Commission is empowered under s.391(3) to make orders for the payment of an amount for the remuneration lost because of the dismissal.

[9] It is not the role of the Commission to resolve disputes about the taxation treatment of the gross amount paid. If the amounts paid have not been taxed in accordance with Australian Taxation law, then Ms Somasundaram must pursue this with the Australian Taxation Office.

[10] As there is no dispute about the gross amount that was due to Ms Somasundaram and hence the remuneration lost because of the dismissal, the Commission has no further role to play in this matter.

DEPUTY PRESIDENT

Appearances:

A. Somasundaram on her own behalf.

S. Killackey for the Respondent.

Hearing details:

2016.

Melbourne, by telephone:

21 November.

 1   PR572596

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