Angela Clement v Grange Aged Care T/A the Grange Albury

[2015] FWC 2525

[2015] FWC 2525

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Angela Clement
v
Grange Aged Care T/A The Grange Albury; Gary Bares; Paul Phillips
(U2014/12942)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 14 APRIL 2015

Application for relief from unfair dismissal.

[1] On 30 September 2014 Ms Angela Clement filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[1] In my decision on the merits of the application, [2015] FWC 2031 dated 2 April 2015, I found that Ms Clement’s dismissal was harsh, unjust or unreasonable. I invited:

○ Ms Clement to put a submission on remedy, which addressed each of the factors in s.392 of the Act, within 7 days of the decision; and

○ the respondent to indicate if it wished to put a submission within 7 days of the decision, in the absence of which I would make a decision ‘on the papers’ on the basis of the submissions put to me and in accordance with the Fair Work Act 2009.

[2] Ms Clement filed a submission on remedy on 9 April 2015. The respondent did not indicate to the Commission that it wished to make a submission on remedy. No reply or submission has been received from the respondent.

Decision

[3] The applicant did not seek reinstatement because of the circumstances. I am satisfied that reinstatement is inappropriate within section 390(3) as a satisfactory working relationship is unlikely to be restored.

[4] Secondly, within section 390(3)(b), I consider that an order for the payment of compensation is appropriate in all the circumstances of the case. Thirdly, within section 392, I consider it appropriate to order that the employer, at the time of the dismissal, pay compensation to the applicant in lieu of reinstatement.

[5] Fourthly, I have taken into account all the factors in section 392(2). I have taken into account the decisions in Sprigg v Paul’s Licensed Festival Supermarket 1, Ellawala v Australian Postal Corporation2, Smith v Moore Paragon Australia Ltd3, and Haigh v. Bradken4.

[6] In relation to s.392(2)(a) I am not satisfied that a payment of compensation will not have an effect on the viability of the employer’s enterprise. The respondent has not put this submission and earlier advice (3 December 2014) about supposed appointment of liquidators is limited in nature and not supported by a search.

[7] In relation to s.392(2)(b) I have taken into account the length of the applicant’s service. The applicant was employed from November 2010 on a casual basis, and appointed to a full time position with the respondent on 4 April 2011.

[8] In relation to s.392(2)(c), the applicant was dismissed on 8 September 2014 without pay in lieu of notice or notice. If given notice her last day of work would have been 17 September 2014, and she would have received remuneration for that period of $3,574.72 less taxation.

[9] In relation to s.392(2)(d) the applicant commenced new employment on 1 October 2014. She made reasonable efforts to mitigate the loss suffered.

[10] In relation to s.393(e), this is set out above. Her new earnings are comparable to her old. Loss of earnings after 17 September are not claimed.

[11] In relation to s.393(f), this consideration is neutral.

[12] I turn to deal with s.392(2)(g), any other matter the commission thinks is relevant. In the circumstances, I have regard to all the submissions and evidence. The harsh manner of dismissal weighs in favour of the applicant.

[13] Pursuant to section 392(5) and (6), the amount ordered by the Commission to be paid to applicant must not exceed the total amount or remuneration received by the applicant for any period of employment during the 26 weeks immediately before the dismissal.

[14] Pursuant to s.394 and s.392 of the Fair Work Act 2009, I will order that the respondent pay to the applicant within 14 days by electronic funds transfer an amount of $3,574.72 less taxation. An order is contained in PR563059.

DEPUTY PRESIDENT

 1   Sprigg v Paul’s Licensed Festival Supermarket (1988) 88 IR 21.

 2   Ellawalla v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 at [31]

 3   Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32]

 4   Haigh v. Bradken [2014] FWCFB 236

Printed by authority of the Commonwealth Government Printer

<Price code A, PR563014>