Ariana Goss v Health Generation Pty Ltd

[2021] FWC 4301

[2021] FWC 4301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ariana Goss
v
Health Generation Pty Ltd
(U2020/12801)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 JULY 2021

Application for an unfair dismissal remedy – dismissal unfair – remedy determined –reinstatement inappropriate – assessment of compensation – s.392(2)(c) and efforts to mitigate loss considered – compensation assessed at $46,638.75 gross, plus Superannuation.

[1] On 30 March 2021, I determined that the dismissal of Ms Ariana Goss by Health Generation Pty Ltd (the Respondent) was unreasonable, and therefore unfair. 1 I concurrently issued directions for the filing and service of further material to address the question of what remedy, if any, should be ordered. This decision deals with the question of remedy.

[2] The matter before me has concerned the Respondent’s summary dismissal of Ms Goss following her disclosure of confidential information during the course of an investigation into allegations Ms Goss made that she had been subjected to sexual harassment and bullying during her employment. In deciding whether Ms Goss was unfairly dismissed, I was not required to determine, and nor have I determined, whether or not she was sexually harassed or bullied. Those allegations are the subject of a claim Ms Goss has made to the Australian Human Rights Commission. In concluding that the dismissal of Ms Goss was unfair, I stated:

“[63]…I am not persuaded Ms Goss’ disclosure of confidential information to Mr McConnell, in all the circumstances of this case, including her symptoms and the prevailing conditions brought about by COVID-19, constituted a valid reason for the termination of Ms Goss’ employment.

[64] Having considered each of the matters specified in s 387 of the Act, I am satisfied that the dismissal of Ms Goss was unreasonable. This is because I am not satisfied the Direction that Ms Goss treat the investigation as confidential was reasonable insofar as it required Ms Goss to elect to confide in either one support person or her legal advisers acting in the capacity of support person(s), but not both. I am therefore satisfied that Ms Goss was unfairly dismissed within the meaning of s.385 of the Act.” 2

[3] Section 390 of the Fair Work Act 2009 (Act) outlines the circumstances in which an order for reinstatement or compensation may be made:

“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.”

Section 390(1)

[4] In the decision of 30 March 2021 (the Decision), I determined that Ms Goss was protected from unfair dismissal when she was dismissed and that she was unfairly dismissed. 3 The requirements of ss.390(1)(a) and (b) of the Act are therefore satisfied.

Section 390(2)

[5] There is no question that Ms Goss has made an application under s.394.

Section 390(3)(a)

[6] Ms Goss contends that reinstatement is not an appropriate remedy and does not seek it. 4 In the circumstances of this case, which were outlined in the Decision,5 and having regard to the submissions of both parties, I am satisfied that an order for reinstatement of Ms Goss is inappropriate.

Section 390(3)(b)

[7] I must then consider whether an order for payment of compensation is appropriate in all the circumstances of the case, and if so, what that amount should be.

[8] Taking into account my finding that the dismissal was unfair and the reasons for that conclusion I have outlined above, and since I am satisfied an order for reinstatement is inappropriate, I consider that an order for payment of compensation is appropriate in all the circumstances. I am not persuaded the material before me suggests otherwise. I have noted the Respondent submits an order for compensation would be the appropriate remedy and its submissions were directed to the assessment of compensation. Section 390(3)(b) is therefore satisfied.

Section 392

[9] Section 392 of the Act sets out the criteria for deciding an amount of compensation. It is important to note that it is not my task in this proceeding to assess compensation for the sexual harassment and workplace bullying that has been alleged. The assessment of compensation I am required to undertake is instead directed towards the remuneration lost in consequence of Ms Goss having been unfairly dismissed.

[10] Section 392 also provides that if I am satisfied that misconduct by Ms Goss contributed to the Respondent’s decision to dismiss her, I must reduce the amount of compensation by an appropriate amount. Further, it specifically prohibits including any component of compensation for shock, distress or humiliation, or other analogous hurt, caused to Ms Goss by the manner of her dismissal and, via a compensation cap, imposes an upper limit of compensation that may be ordered.

[11] 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.”

[12] The method for calculating compensation under s.392 of the Act was considered by a Full Bench of the Commission in Johnson v North West Supermarkets T/A Castlemaine IGA (Johnson) 6in the following way:

“[41] The well-established approach to the assessment of compensation under s 392 is to apply the ‘Sprigg formula’, derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. 7 This approach was articulated in the context of the current legislative framework in Bowden v Ottrey Homes Cobram and District Retirement Villages.8Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c), that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”

[42] The identification of this starting point amount ‘necessarily involves assessments as to future events that will often be problematic,’ 9 but, as the Full Bench observed in McCulloch v Calvary Health Care Adelaide,10 ‘while the task of determining an anticipated period of employment can be difficult, it must be done.’11

[43] Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case. 12“

(my emphasis)

[13] In Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe, 13 the Full Bench stated that in quantifying compensation, it is necessary to set out with some precision the way in which the various matters required to be taken into account under s.392(2) (and s.392(3) if relevant), and the steps in the Sprigg formula, have been assessed and quantified. The Full Bench also proffered that the way in which a final compensation amount has been arrived at should be readily apparent and explicable from the reasons of the decision-maker.

[14] Ms Goss seeks an order for compensation in the amount that she says is equivalent to the 26 weeks compensation cap, which in this case equates to approximately $74,512.50. The Respondent contends that it is unlikely that the employment would have continued for more than one month beyond 3 September 2020, the date of termination.

Remuneration that Ms Goss would have received or would have been likely to receive, if she had not been dismissed: s.392(2)(c)

[15] Ms Goss says that she was not intending to leave her employment and she was not otherwise facing an early termination of her employment for any apparent reason. She gave evidence relating to her expectation of ongoing employment with the Respondent. Ms Goss submits it is unchallenged that she was the Respondent’s most senior sales employee and a very successful revenue generator. Ms Goss gave evidence that by January 2020, she was director of client relations, paid an executive salary and generating revenue averaging $192,000 per month for the Respondent. 14

[16] Ms Goss argues that no evidence as to poor performance was led and says there was none. She maintains she was an excellent performer, that there was no evidence of any misconduct during her employment and that there has been no finding by the Commission that she had engaged in misconduct. Ms Goss produced text messages she received from Mr Andrew Rayment, an investor in the Respondent. She submits that his text messages to her up until 28 July 2020 were encouraging and positive. Ms Goss claims Mr Rayment was the most senior representative of the Respondent in the absence of the managing director, Mr Heath Downie.

[17] Ms Goss says she made her complaint regarding workplace bullying and sexual harassment in writing on 31 July 2020 after having raised issues with Mr Rayment. She says she wanted her complaint assessed independently, objectively and resolved and then to continue in her employment.

[18] Ms Goss submits that it would be a perversion of accepted orthodoxy for the Respondent to now contend that, because she made a serious and bona fidecomplaint, she destroyed the trust and confidence in the employment relationship and that as a result, the employment relationship was terminal and doomed to unravel. Ms Goss submits that such a submission is unmeritorious and seeks to reward abject wrongdoing.

[19] Ms Goss’ evidence was that she wanted to stay employed. She submits that but for Mr Downie’s grossly inappropriate conduct directed at her and Mr Rayment’s failure to provide any support or comfort to her in the period up to and after 31 July 2020, she would have continued in employment with the Respondent for at least five years.

[20] The Respondent argues that such a submission is fanciful because it suggests that the early end to the employment was brought about by Mr Downie’s alleged conduct, and the “new” claim of Mr Rayment’s alleged inaction. The Respondent submits the assessment compelled by section 392(2)(c) is not how long the employment would have lasted but for the alleged sexual harassmentbut involves instead an assessment of how long employment would have continued if the dismissal had not occurred.

[21] The Respondent asserts it is hard to see what relevance could attach to the communications between Ms Goss and Mr Rayment in the context of remedy and suggests Ms Goss is simply seeking to present further evidence on the alleged unfairness of her dismissal. The Respondent submits this bears no forensic relevance to the task of assessing compensation and should be disregarded.

[22] The Respondent argues:

•  the Commission’s task is limited to remedying the dismissal; and

•  the allegations regarding the Respondent’s manner of dealing with the allegations of sexual harassment and the contention that it should have taken other steps to investigate and address the concerns of Ms Goss may be relevant in the complaint which Ms Goss is pursuing in the Australian Human Rights Commission; but

•  what other steps it could have taken to investigate and address the concerns of Ms Goss are not relevant to the task presently before me.

[23] The Respondent says Ms Goss was dismissed not for the sexual harassment allegations but for a breach of confidentiality which has been found by the Commission to be unfair. It says that by the time of the breach of confidentiality, the alleged conduct of Mr Downie had occurred, and the allegations made by her lawyers in the letter dated 31 July 2020 15 had been levelled. The Respondent submits the remedy to be granted remains limited to addressing the dismissal, not the course of events which preceded it.

[24] The Respondent submits that with the employment relationship having deteriorated to the state of affairs prevailing on 3 September 2020, it is inherently improbable that employment would have continued for any length of time. In its outline of submissions dated 20 November 2020, the Respondent submits Ms Goss may have resigned or may have sought to negotiate a departure agreement but it is unlikely that she would have stayed. Ultimately, the Respondent’s position is that it is unlikely that the employment would have continued for more than one month thereafter. Ms Goss refutes this and counters that the Respondent led no evidence from Mr Downie, Mr Rayment or Ms Bianca McBride, the Respondent’s Director of Operations.

[25] As was outlined by the Full Bench in Johnson, the identification of the starting point amount in s.392(2)(c) “necessarily involves assessments as to future events that will often be problematic”. 16 It has previously been held that an assessment of the likely period of employment is not to be conducted in a vacuum but rather against the backdrop of the circumstances of the dismissal and the reasons for concluding that the dismissal was unfair.17

[26] The Respondent contends that it was unlikely Ms Goss was going to return to work after 30 June 2020 because from that time she was unable to work due to depression and anxiety tied to the sexual harassment allegations. The Respondent argues that regardless of whether Ms Goss had been dismissed on 3 September 2020 over her breach of confidentiality on 27 August 2020, it was unlikely that the employment relationship was going to continue for long. It argues this is because Ms Goss would still have been in the position of pursuing a claim for sexual harassment against the Respondent’s managing director, Mr Downie, and in that context, it was inherently improbable that employment would have continued beyond a relatively short duration. The Respondent submits it is common ground that the employment relationship has broken down. It claims it is significant that Ms Goss is not seeking reinstatement.

[27] Ms Goss says she had no intention of leaving her employment. As to this proposition, I am satisfied that at the time she raised her complaint on 31 July 2021, Ms Goss wanted to remain employed by the Respondent and I accept she had decided to keep her complaint in-house for this reason. I have noted Ms Goss’ belief that there would ultimately be a way through, possibly with the introduction of a new reporting line to Mr Rayment or Ms McBride. I have also noted that on revenue figures alone, Ms Goss had been a valuable employee of the Respondent and that the Respondent has a dispersed workforce, with its employees largely working from home pursuant to arrangements that existed prior to the onset of COVID-19.

[28] However, I have also considered these propositions and the proposition that Ms Goss would have continued in employment for at least five years against the following:

•  The evidence of Ms Goss regarding the evolving nature of her relationship with Mr Rayment:

•  “How would you describe your relationship with Mr Rayment, the investor, prior to 31 July 2020? -Yes, I would speak to him quite often. More so towards July 2020, when Heath was in and out of rehab and I had to bring in a good sales number for the sales team. Yes, he was kind but he never really understood - he would never understand - he would never - he didn’t seem to understand me, he was always, as per the email, the text message, he would always say, “Raise your issues with Heath or Bianca”. It always would go back to Heath, so he just failed to see that the issued lied there. It was - it was a workable relationship and he failed to see it which, understandably, was quite frustrating, but nothing that I couldn’t have worked through, once I’d submitted a formal complaint” 18

•  “…when I submitted my initial complaint, on 31 July last year, and I haven’t heard from him since. I haven’t heard anything from him, in terms of acknowledging how I feel, what had happened, any of my complaints. Why would I then call Andy and request a reference from him when he has not even reached out to me to provide any sort of comfort of what I had been through in his organisation?”;  19 and

•  “There was absolutely no reason why you couldn’t have used him to help you in finding alternative employment? -That may be your interpretation, but instead of warm and supportive I feel a complete disregard and the complaint had been lodged the month after, or on or about two months after, and a warm and supportive person, with a genuine hope that either the existing employee or ex-employee would find - stay in the employment or find alternative employment, that’s not warm and comforting, having not heard a response, or having not heard anything, after I’ve put a serious claim in. That’s not comforting at all. It’s - - -

You could have used him and you didn’t? -I disagree. I could not have used him. I was not put in a position to use him, when I haven’t heard anything in response, and I completely disagree, it was not warm and comforting, it was complete ignorance to what I’d gone through and continues to be, because I haven’t heard from him since I made that formal complaint.” 20

•  The evidence of Ms Goss outlining her reaction to the summary of findings of the investigation into her complaints, sent to her lawyers on 4 September 2020:

“I read the one page summary and was devastated. I interpreted Mr Lunn, as the lawyer retained by my employer, to label me a liar and a fantasist. He provides no explanation for making his findings. It made me feel sick when I read that one page statement dismissing all my claims of sexual harassment and other conduct by Mr Downie. It made me feel my employer was never serious about investigating any of the complaints I had made. I considered that this summary dismissal of my detailed complaints about Mr Downie’s conduct was caused by the fact that I had exposed Mr Downie’s conduct toward me, his unsafe and dangerous workplace behaviour and that I had formally complained about it.” 21

[29] The factor the Commission must take into account when considering s.392(2)(c) is the remuneration that Ms Goss would have received, or would have been likely to receive, if she had not been dismissed on 3 September 2020. Even if no dismissal had taken place on 3 September 2020, it appears Ms Goss would have received the summary of findings of the investigation into her complaints very soon after that day because the investigation interviews appear to have concluded with her interview on 27 August 2020. Her reaction, outlined above, suggests the quality of the employment relationship she had with the Respondent would have been profoundly impacted in circumstances where it did not have a particularly robust foundation and history to fall back on. It was of just 14 months’ duration when Ms Goss submitted her formal complaint about Mr Downie. If the employment had nonetheless been able to continue, the relatively flat management structure of the Respondent would have made the task of establishing a new, ongoing reporting line for Ms Goss more challenging, particularly if it was not to include Mr Downie or Mr Rayment. One has to bear in mind Mr Downie was the subject of Ms Goss’ complaint and the evidence from Ms Goss regarding her developing disenchantment with Mr Rayment. Ms Goss then lodged a claim with the Australian Human Rights Commission on 30 November 2020. I cast no aspersions on Ms Goss for doing so and simply observe that this introduced a dynamic for the parties to navigate that is not a standard feature of an ongoing employment relationship. Having regard to these various circumstances, I am not persuaded Ms Goss would have continued in employment with the Respondent for at least five further years.

[30] My assessment is that Ms Goss would have remained in employment with the Respondent for a further period of six months. Within such period, I consider the parties would have been able to give the task of repairing their employment relationship their focus against the abovementioned background. However, navigating the various dynamics would have required significant care and goodwill and if it became apparent repair and recalibration was beyond their best intentions, such a period would also have accommodated the absorption of any Christmas/New Year downturn and an orderly period for Ms Goss to pursue, secure and depart for a new role elsewhere. Based on the rate of earnings Ms Goss was receiving at the date of her dismissal, the gross remuneration she would have received during that period would have been $68,100.00 (excluding superannuation)).

[31] This is calculated by adding the annual components for base salary ($120,000.00), car allowance ($15,000.00) and phone allowance ($1,200.00) from Ms Goss’ remuneration package and dividing the total ($136,200.00) by two, to arrive at the six-month figure (excluding superannuation).

Remuneration earned – s.392(2)(e) and Income reasonably likely to be earned – s.392(2)(f)

[32] Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f) of the Act. Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula. 22

[33] Ms Goss worked for one to two days per week as a contractor between mid-September 2020 until the end of November 2020 and earned $5,915.00 gross. During the period between the dismissal and the date of the making of the order for compensation, Ms Goss has therefore earned approximately $5,915.00.

[34] At the time of the hearing on remedy, Ms Goss said she was yet to secure further work and that she lacks the confidence to apply for any senior roles or roles that could bring an element of stress. She submits that there is no amount likely to be earned presently.

[35] The Respondent submits that, although Ms Goss reports limited earnings since termination, there is no reason for pessimism for her future earning capacity because she was a high income earner in both her previous employment and in the course of her work with the Respondent. The Respondent submits that it must be highly probable that Ms Goss will be able to secure alternative employment and mitigate the loss flowing from the termination. The Respondent asserts that there is no evidence, medical or otherwise, suggesting a contrary view should be taken.

[36] Given what has transpired to date and in the absence of information suggesting otherwise, I determine Ms Goss will not have earned any income during the period between the making of the order for compensation and the actual compensation.

[37] In mathematical terms, deducting the actual and likely income for Ms Goss for the six month period from the date of her dismissal ($5,915.00) from the amount calculated for the purpose of s.392(2)(c) ($68,100.00), 23 leaves $62,185.00 gross in compensation (excluding superannuation).

[38] Any deduction for contingencies is applied to prospective losses, that is loss occasioned after the date of the hearing. 24 The Full Bench observed in Ellawala v Australian Postal Corporation25:

“... A discount for contingencies is a means of taking account of the various probabilities that might otherwise affect earning capacity. At the time of hearing any such impact on an applicant’s earning capacity between the date of termination and the hearing will be known. It will not be a matter of assessing prospective probabilities but of making a finding on the basis of whether the applicant’s earning capacity has in fact been affected during the relevant period.” 26

[39] Ms Goss was dismissed on 3 September 2020. I have found that but for her dismissal she would have remained in her employment with the Respondent for a further period of six months. (i.e. until 3 March 2021). As a contingency discount only applies to prospective losses, I am not persuaded to make any discount for contingencies having regard to the circumstances of this matter.

Any other matters – s.392(2)(g)

[40] Ms Goss submits that other relevant considerations include:

(a) there was novalid reason for the dismissal and Ms Goss was summarily dismissed. She was not provided with any notice of termination. She was not paid in lieu. Ms Goss says that was unlawful conduct by the Respondent in breach of a penal provision of the Act (s.117);

(b) Ms Goss was injured in her employment by Mr Downie and was on personal leave when she sought an investigation into her treatment. The Respondent knew she was unwell and why she was unwell. During that investigation, the Respondent treated her in a peremptory and harsh fashion and then dismissed her without a valid reason. There was no sound, logical or fair basis upon which her employment could (or should have) been terminated. The Respondent had retained competent lawyers at that time, but refused, and refuses, to waive any [alleged] legal professional privilege (which is denied) in the advice it received or the contents of the investigation report itself. The dismissal was egregiously unfair and that is a relevant factor which weighs in favour of an order for compensation.

[41] The Respondent says its case on the question of liability involved considerable reliance upon the effect of the letter from Ms Goss’ lawyers dated 2 September 2020. 27 It says it had given Ms Goss an opportunity to respond to its concerns about interference with a witness and submits the prudent response would have been for Ms Goss to have apologised for the disclosure and to undertake that it would not happen again. The Respondent argues the reply on 2 September 2020 contained no such content. The Respondent relies on the following from its final written submissions:

‘Instead, Ms Goss makes no apology, and is adamant that she will continue to make disclosures to Mr McConnell. She acknowledges in the letter that she ‘was aware that she was prohibited from talking to her partner about the investigation’– it is hard to see the letter as other than a clear admission of breach of a prohibition that she was expressly aware of. The letter goes on to say that ‘Given that Brendan is our client’s partner and support person, she will continue to speak with him regarding the investigation’. It is a belligerent response which fails to show any appreciation of the seriousness of the situation.

…

In the circumstances, the position adopted by Ms Goss provided the Respondent with little option but to move to termination of employment. Not only was there no guarantee against repetition, there was an avowed intention to continue to divulge confidential information. There was a valid reason for the termination of employment.’  28

[42] The Respondent relies on my observation at paragraph [60] of the Decision “…the lawyers for Ms Goss could have given the Respondent a greater level of comfort so as to satisfy it that its legitimate concerns regarding Mr McConnell had been taken seriously and addressed.”

[43] The Respondent submits that there was contributory action by Ms Goss to the decision to terminate her employment because her response gave the Respondent little real option but to move to termination of employment. The Respondent relies on what it categorises as the contribution of Ms Goss, in providing instructions to her lawyers for the contents of the letter dated 2 September 2020, to the decision to terminate as a relevant consideration to be taken into account in assessing the appropriate level of compensation in all the circumstances.

[44] As to this, the comments I made that are relied upon by the Respondent need to be read in the full context of paragraph [60] of the Decision:

“…I consider cooler heads and a more conciliatory tone than that adopted by the parties and their respective lawyers was required after Mr McConnell’s behaviour became apparent. In the aftermath, the Respondent might have recognised that having regard to Ms Goss’ mental health injury and need for emotional support, together with the COVID-19 restrictions in Victoria, a more realistic approach to confidentiality was warranted. Balanced against this, the lawyers for Ms Goss could have given the Respondent a greater level of comfort so as to satisfy it that its legitimate concerns regarding Mr McConnell had been taken seriously and addressed.” (my emphasis)

[45] As these comments indicate, while I may have opined that the lawyers for the parties could have approached things differently, I did not, and nor do I now, determine there was contributory action by Ms Goss.

Viability – s.392(2)(a)

[46] There is no evidence to suggest that an order for compensation would have any adverse effect on the viability of the Respondent and the Respondent did not seek to rely on this as a consideration. There will be no deduction made having regard to this factor.

Length of service – s.392(2)(b)

[47] At the time of her dismissal Ms Goss had completed 16 months of service with the Respondent. This is not an extensive period of time. There will be no adjustment either way on account of this factor.

Mitigation efforts – s.392(2)(d)

[48] The question in applying this factor is whether Ms Goss has acted reasonably. As held by the Full Bench in McCulloch v Calvary Health Care Adelaide, 29 the reasonableness of an applicant’s efforts taken to mitigate loss depends on the circumstances of the case.

[49] Ms Goss says her mental well-being has impacted her ability to work since her dismissal. The Respondent submits any claim that Ms Goss’ mental health justifies her inaction in seeking alternative employment should not be accepted.

[50] Ms Goss also outlined that her self-confidence had been impacted and this has compromised her attempts to secure new employment, particularly at a level comparable to her previous employment.

[51] The only work undertaken by Ms Goss since her dismissal was as a contractor for a digital engineering company for one to two days a week from mid-September 2020 until the end of November 2020. For this, as outlined above, she earned $5,915.00. Under cross-examination at the Hearing, Ms Goss gave the following evidence regarding that engagement and the circumstances of her ceasing it at the end of November 2020:

“And did you say, at that point, you don’t want to work any longer? - Not that I didn’t want to work, it was - we had all these court things coming up, there was all - I was basically - with all the court hearings and the initial Fair Work trial that was in November, it was all - I obviously had to put my attention towards all of this.

So you told the employer that you were working for then, you don’t want to work anymore because you wanted to focus on your action against Health Generation, is that right? - No, I didn’t tell that specific information to my employer at the time.

You didn’t tell them that, but that was the rationale? - Well, my rationale was I was dealing with the courts and I was a contractor, so it was very much so my choice whether I wanted to work or not wanted to work.

So there was an ongoing job there that you could have continued to work in and earn money, but you decided to bring that to an end, is that right? - I - it’s there if I want it, but it’s digital engineering. And what you need to understand is, what - my passion and where my passion lies is in health and aged care.

Okay. But there was a job there, there was a job there that could have given you continuing income, after the end of November, and you said, “No, I’m not going to work here anymore”? - Well, I - I was going through, at the time we had the Fair Work Commission coming up, you know, my hearing coming up. My intent was to focus on that entirely. That was - that was my choice to focus on that entirely.

But it was a one day hearing, you didn’t need to spend - you didn’t need to end your other employment, did you, to dedicate to this process? - A one day hearing versus 20 - every day, every hour, every minute, that goes - my mental state - despite it being one day, the lead up to that of everything that I’d been through, up until that date, I just - not that I didn’t try to work, I absolutely tried to work, but I just - I - I couldn’t. You know, I tried, I went out and I just couldn’t, I just couldn’t continue.

For the period you were working in that first block, it was one to two days per week, was that at your option? Could you have worked more days per week? Was there work there that you could have done for more days per week? - No. They only asked me to work for one to two a week, as well, so it worked really well with what I was after. It was never - it was never a full-time general management role. It was never Monday to Friday.

End of December, sorry, end of November you said. “Okay, no more because I’m going to focus on my case against Health Generation”? - I didn’t say that to them. I didn’t say that at all.

But that’s what you decided yourself and that’s when we - - -? - With digital engineering come - and with any, even with health and aged care, towards December and the festive season all businesses really just quietened down and they didn’t need me as much at the time.

Well, which was it? Was it that they no longer needed you, or you told them - - - ? - No, it was a combination of both, in terms of Christmas coming up and the festive season coming up and then obviously I had other priorities as well. So it just worked out.

But there could have been more work there if you’d chosen to pursue it? - No, not during that festive season.

Well, what, from the end of November, I thought - I thought the work stopped when you needed to - - -? - It was a combination of both. So, again, I had my priorities that I wanted to put my focus on and then come December/January, even up to February, that’s when all of the chief information officers and all that basically take some time off, so it wasn’t really required, at the same time. ”30

[52] Ms Goss says that her opportunities for employment were compromised by the festive season. She gave evidence that she had applied for new employment via the SEEK website and by emailing some prospective employers directly. Ms Goss submits that having to explain the circumstances of her leaving the Respondent and her lack of references from her time there were barriers to obtaining new employment.

[53] As to these various matters:

(a) The only evidence going to the impact of Ms Goss’ mental well-being on her ability to work since her dismissal is from Ms Goss herself. While a medical assessment might have been produced had Ms Goss made a workers’ compensation claim, the only report before me is from Ms Colleen Murphy (Psychologist), to whom Ms Goss was referred for treatment for acute anxiety and depression on 30 June 2020. In her report, dated 9 November 2020, 31 Ms Murphy attributed Ms Goss’ anxiety and depression to workplace bullying and sexual harassment she had experienced over a prolonged time at work for the Respondent but she did not address Ms Goss’ capacity for work. Ms Goss appears to be receiving ongoing support from Ms Murphy and said the purpose of this was “To talk about my - how I’m still feeling. For her to give me a boost of confidence every week, to get that spring in my step. To talk about what’s happened and how I’m processing and how I’m trying to move on”.32 However, no further report was produced and nor was Ms Murphy called to give evidence about Ms Goss’ capacity for work.

(b) I accept Ms Goss has gone through a confronting experience and has suffered from a lack of confidence in the aftermath of her dismissal.

(c) The contracting work Ms Goss obtained suited both her needs and those of the client in question but ceasing it when she did was a choice made by Ms Goss.

(d) I accept the festive season has an impact on employment opportunities, but Ms Goss also gave evidence that she was not looking for employment during January and February 2021. 33

(e) It was not until 5 March 2021, six months after her dismissal, that Ms Goss started applying for new employment. 34

(f) I accept the lack of a reference from one’s most recent employer and having to explain a termination that has given rise to an unfair dismissal application will pose challenges. Such challenges are, however, an inevitable feature when unfair dismissal applications proceed to hearing and require a Commission decision. Further, it seems that it was not until a conciliation conference conducted by the Australian Human Rights Commission on 15 April 2021 that Ms Goss first requested a reference from the Respondent.

[54] In the circumstances of this case, I consider Ms Goss made a reasonable effort to mitigate her loss during the period between her dismissal and the hearing on 2 December 2020 when she undertook part-time contracting work and further, that her inactivity in the immediate Christmas/New Year period of 2020/2021 was reasonable. I also note Ms Goss commenced making job applications from 5 March 2021. However, Ms Goss did not seek work at all during the period from 3 – 24 December 2020 nor from 11 January – 4 March 2021. Having regard to this 11-week period of inactivity during the 45-week period that has ensued from the date of Ms Goss’s dismissal until now, and which followed an earlier period during which Ms Goss had worked, I consider a 25% deduction in the amount of compensation to be awarded is warranted, having regard to Ms Goss’s efforts to mitigate her loss. Applying this to the sum I calculated in [37] above ($62,185.00 gross) results in a deduction of $15,546.25 and a revised total of $46,638.75 gross.

Misconduct – s.392(3)

[55] Ms Goss submits that there was no misconduct during her employment. She submits the Commission rejected such a characterisation of events from the Respondent and there having been no lawful and reasonable direction disobeyed by Ms Goss, there is thus no basis for any reduction in compensation.

[56] While the Respondent submits this is an appropriate case for the application of this provision, it also ultimately accepts the findings in the Decision do not support such an approach.

[57] My finding was that the nature of the direction that Ms Goss treat the investigation as confidential was not reasonable, having regard to the circumstances of this case. 35 Accordingly, I am not persuaded that any deduction on the basis of this factor is warranted.

Compensation cap: s.392(5) & (6)

[58] The agreed position of the parties ultimately was that the total amount of remuneration pursuant to s.392(6) was $74,512.50 inclusive of superannuation. This is calculated from a total annual remuneration of $149,025.00 comprising:

(a) $120,000 base salary;

(b) $15,000 car allowance;

(c) $12,825 superannuation; and

(d) $1,200 phone allowance ($100 pcm).

[59] Having regard to s.392(5), the statutory compensation cap in this matter is $74,512.50 and the compensation amount must not exceed this.

Instalments: s.393

[60] There were no submissions made regarding this factor and I do not consider that there is any reason for compensation to be paid by way of instalments.

Shock, Distress: s.392(4)

[61] The amount of compensation calculated must not and does not include a component for shock, distress, humiliation or other analogous hurt caused to Ms Goss by the manner of her dismissal.

Conclusion

[62] The overarching requirement in assessing compensation is to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case. 36 In this case, I consider the appropriate amount of compensation to be awarded to Ms Goss is $46,638.75 gross plus Superannuation, less taxation required by law.

[63] The order I make will require payment of the compensation amount by the Respondent within 21 days of the date of the order. The order is published contemporaneously with this decision in [PR731889].

DEPUTY PRESIDENT

Appearances:

Mr N Harrington on behalf of Ms Ariana Goss
Mr R Millar on behalf of Health Generation Pty Ltd

Final Oral submissions on Remedy:

2021.
By Video via Microsoft Teams
26 May.

Printed by authority of the Commonwealth Government Printer

PR731887

 1   [2021] FWC 1751

 2   Ibid at [63] and [64].

 3   Ibid at [25] and [64].

 4 Applicant’s Outline of Submissions – Remedy dated 30 April 2021 at [4].

 5   [2021] FWC 1751 at [3]-[22].

 6   [2017] FWCFB 4453

 7 Print R0235, (1998) 88 IR 21.

 8   [2013] FWCFB 431; 229 IR 6.

 9   Smith v Moore Paragon Australia Ltd PR942856, [2004] AIRC 57; (2004) 130 IR 446 at [32].

 10   [2015] FWCFB 873

 11 Ibid at [27].

 12   Ibid.

 13   [2017] FWCFB 429 at [43].

 14   Exhibit A2 at [37] to [39] - DCB at p.58.

 15   Exhibit A2, Attachment AG6 - DCB at p.111.

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

 17   Liu v Xin Jin Shan Chinese Language and Culture School Inc[2021] FWC 479 at [10].

 18   Transcript 26 May 2021 at PN 225.

 19   Ibid at PN 198.

 20   Ibid at PN 203-204.

 21   Exhibit A2 at [108] – DCB at p.67.

 22   Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206 at [31].

 23 See above at paragraph [30].

 24   McCulloch v Calvary Health Care Adelaide[2015] FWCFB 2267 at [21].

 25   Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000)

 26 Ibid at [44].

 27   Exhibit A2, Attachment AG14 - DCB at p.136.

 28   Final written submissions of the Respondent dated 28 January 2021 at [28] and [31].

 29   [2015] FWCFB 2267 at [23], citing Biviano v Suji Kim Collection PR915963 at [34].

 30   Transcript 26 May 2021 at PN 134- PN145.

 31   Exhibit A1 – DCB at p.151.

 32   Transcript 26 May 2021 at PN 233.

 33   Ibid at PN194.

 34   Ibid at PN 196.

 35   [2021] FWC 1751 at [49] and [64].

 36   McCulloch v Calvary Health Care Adelaide[2015] FWCFB 873 at [29].