Audrey Campbell v Gold Tiger Logistics Qld Pty Ltd
[2024] FWC 1041
•19 APRIL 2024
| [2024] FWC 1041 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Audrey Campbell
v
GOLD TIGER LOGISTICS QLD Pty Ltd
(U2023/8739)
| COMMISSIONER DURHAM | BRISBANE, 19 APRIL 2024 |
Application for an unfair dismissal remedy – Jurisdictional objection – Whether employee dismissed – Jurisdictional objection dismissed – Application granted – Reinstatement not appropriate – Compensation awarded
On 12 September 2023 Ms Audrey Campbell (Ms Campbell/the Applicant) made an application to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the FW Act). Ms Campbell alleged that she was unfairly dismissed from her employment with GOLD TIGER LOGISTICS QLD Pty Ltd (Gold Tiger/the Respondent) on 11 September 2023. I issued a decision on 9 April 2024 finding that Gold Tiger did dismiss Ms Campbell (consequently dismissing the jurisdictional objection), that Gold Tiger had unfairly dismissed Ms Campbell, and that reinstatement was not appropriate. Additionally, I reserved my decision with respect to compensation pending further submissions from the parties.
Ms Campbell originally sought reinstatement with associated orders for lost wages and continuity of service but acknowledged that the relationship between the parties may deem this unworkable.[1] Alternatively, she is seeking financial compensation for lost earnings from the time after her payment was received until she is either successfully employed or reaches retirement age.[2] The Respondent also submitted that reinstatement is inappropriate.[3]
I issued directions on 10 April 2024, for the parties to file submissions and evidence to assist in determining:
a.the Applicant’s regular hours of work and regular weekly/fortnightly pay.
b.hours that would have been worked if the Applicant had remained in employment.
c.attempts to mitigate loss after dismissal, including attempts to secure employment and any income received since date of dismissal.
d.any reasons and evidence on why compensation is not appropriate or should be reduced.
I note that Ms Campbell complied with the directions and provided submissions by 12 April 2024, however to date nothing has been filed by Gold Tiger.
Relevant Legislation
Section 390 of the FW Act provides that the Commission may order a 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
the FWC is satisfied that the applicant is a person protected from unfair dismissal, that they had been unfairly dismissed and that they made an application under s 394.(b) the FWC considers an order for payment of compensation is appropriate in
all the circumstances of the case.
Is an order for compensation appropriate in all the circumstances?
As I have previously found that reinstatement is inappropriate, I must now consider whether an order for compensation is appropriate under s 390(3)(b). The Full Bench has noted that the question of whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one, and whether an applicant has suffered financial loss may be a relevant consideration.[4]
I am of the view that in all the circumstances of this case, it is appropriate to order compensation. My reasons and assessment of the amount are set out below.
The long-established approach to assessing compensation in unfair dismissal matters was set out in Sprigg v Paul Licensed Festival Supermarket (Sprigg),[5] which the Full Bench of this Commission has since applied under the current Act.[6]
I summarise the Sprigg formula as follows:
1. Estimate the remuneration that employee would have received if the employer had
not terminated the employment;
2. Deduct monies earned since termination;
3. Discount the remaining amount for contingencies;
4. Calculate the impact of taxation.
While Sprigg sets out the method, I must nevertheless take account of all the circumstances of the case and of the specific criteria listed in s 392.[7]
The overall consideration is that the level of compensation must nevertheless be appropriate (that is, neither clearly excessive nor clearly inadequate) having regard to all the
circumstances of the case.[8]
Section 392(2) provides:
(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.
Section 392(2)(a) – Viability
Gold Tiger has not filed material regarding this factor. I note Mr Heness mentions in his outcome letter dated 11 September 2023, that he has said on several occasions that they need to reduce the costs in the depot, but confirmed that this can be achieved by a number of different methods, not only through the removal of staff.[9] There is no evidence that Gold Tiger are in liquidation.
I am not persuaded that my consideration of this factor means that I should not make an order for compensation.
Section 392(2)(b) – Length of service
Gold Tiger agree that Ms Campbell’s start date was 6 October 2020, though they indicate the dismissal date was 28 August 2023 based on her resignation.[10] However, for the reasons provided in my previous decision, I have found Ms Campbell was dismissed on 11 September 2023.[11]
I am satisfied on the evidence provided that Ms Campbell’s employment with Gold Tiger commenced on 6 October 2020 and that her length of service is therefore 2 years, 11 months and 5 days. This is a moderately short period of time, however, I do consider the fact that Ms Campbell was so close to her anticipated retirement date to be a factor, noting that it was Ms Campbell’s clear intention to stay with Gold Tiger until her retirement.
Section 392(2)(c) – Remuneration the person would have received
As stated by a majority of the Full Court of the Federal Court in the He v Lewin[12] (as quoted in Zeng v Conrock Australia Pty Limited)
“[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.”
Ms Campbell says that she would have remained employed with Gold Tiger until she retired in June 2024, if she had not been dismissed.[13]
I note that Mr Sandroussi’s closing submissions indicate that Gold Tiger are “short on employees and wanted more”. In the absence of any argument to the contrary, I consider Ms Campbell’s position would have been ongoing up to her retirement date. Further, given Ms Campbell’s performance was not in question, noting that Mr Sandroussi states in his closing submissions that Ms Campbell is “a very competent person”, I can see no reason that she would not have remained in employment with Gold Tiger until her retirement in June 2024.
Taking all the above into account, I conclude that Ms Campbell would have remained employed with Gold Tiger until June 2024 which was when she intended to retire. The period from when Ms Campbell’s employment ended on 11 September 2023 until 1 June 2024 is 37 weeks.
Section 392(2)(d) – Efforts to mitigate loss
I accept Ms Campbell’s evidence that her age, and approaching retirement have, and will continue to, impact on her ability to secure alternate employment. She has, nonetheless, made attempts to mitigate her loss by applying for several positions. Ms Campbell’s previous submissions referred to unsuccessful applications for positions with Toll and Blacks Transport, and note that she is registered with Seek and Staff Australia employment agencies. [14]
In her recent submissions, Ms Campbell confirms that she has only worked one week with one employer and has not earned anything since.[15]
Section 392(2)(e) & (f) – Remuneration and income earned
Gold Tiger dismissed Ms Campbell effective immediately and did not pay her any notice period. As alluded to above, Ms Campbell has submitted that she has worked a week with one employer and earned $1,343.00 but has not earned anything since.[16]
Section 392(2)(g) – Any other matter
I note Ms Campbell’s evidence that Gold Tiger failed to make all required superannuation payments during her employment. I do not and cannot order compensation of the above amount, but I do consider the failure to make this payment relevant to making an order for compensation in relation to the dismissal, which I have found to be unfair.
I note that this decision does not preclude Ms Campbell from seeking payments of the
above amount through other means.
Section 392(3) – Contribution to dismissal by misconduct not relevant
The Respondent did not make any submissions regarding the extent of such consideration. As I have not found any misconduct on Ms Campbell’s behalf, I do not intend to reduce any awarded compensation in this regard.
Section 392(4) – Shock, distress etc disregarded
I have not ordered an amount of compensation for shock and distress.
Taxation
Consistent with prior decisions,[17] I propose to order payment of a gross (that is, before
tax) amount of compensation, to be taxed according to law.
Section 392(5) Compensation Cap
Ms Campbell submits she was employed full time (working from 7:30am to 3:30pm) and earned a weekly pay of $1,230.77 per week, or $32.38 per hour.[18] I accept this figure.
Under s 392(5) the compensation cap is the lesser of 26 weeks of Ms Campbell’s pay
or half the amount of the high income threshold.
$83,750 is half the amount of the high income threshold that applied immediately before Ms Campbell’s dismissal, which was $167,500.
$32,000.02 is 26 weeks of Ms Campbell’s weekly pay.
The compensation cap that applies to Ms Campbell is therefore $32,000.02.
Calculations
My calculations are set out in the following table:
| Step 1 – Remuneration if employee had not been dismissed | Amount |
| · Weeks wages per week | $ 1,230.77 |
| · Projected further weeks of employment | 37 |
| Total Remuneration | $45,538.49 |
| Step 2 – Discounts | |
| s 392(2)(Mitigation of Loss (money earned since termination) | $1,343.30 |
| s 392(3) Deduction for Misconduct | 0 |
| Step 3 – Discount other contingencies | 0 |
| Total after deductions | $44,195.19 |
| Step 4 – Taxation - To be taxed according to law | To be taxed according to law |
| Step 5 – s 392(5) Apply compensation cap | $32,000.02 |
Conclusion on Remedy
Having weighed each of the considerations under section 392, I intend to issue an order that the Respondent, Gold Tiger, pay to the Applicant, Ms Audrey Campbell, the sum of $32,000.02 gross, taxed in accordance with law. An order to that effect will be issued separately and concurrently with this decision.
COMMISSIONER
[1] P.20 of the DCB – Applicant’s Outline of Argument (Merits).
[2] Ibid.
[3] P.58 of the DCB – Respondent Submissions.
[4] Vennix v Mayfield Childcare Limited[2020] FWCFB 550 at [20].
[5] (1988) 88 IR 21.
[6] ERGT Australia Pty Ltd v Govender[2021] FWCFB 4508 at [35].
[7] Elefantis v The Trustee for Timber Ridge Unit Trust[2022] FWCFB 43 at [67].
[8] McCulloch v Clavary Health Care Adelaide[2015] FWCFB 873 at [29].
[9] P.27 of the DCB – Outcome Letter dated 11 September 2023.
[10] P.43 of the DCB – Form F3.
[11] Audrey Campbell v GOLD TIGER LOGISTICS QLD Pty Ltd[2024] FWC 913 at [61].
[12] [2004] FCAFC 161 at [58].
[13] P.20 of the DCB – Applicant’s Outline of Argument (Merits).
[14] Ibid P.21.
[15] Applicant Compensation Submissions.
[16] Ibid.
[17] Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge[2013] FWCFB 431 at [55];
Vennix v Mayfield Childcare Limited[2020] FWCFB 550 at [32].
[18] Applicant Compensation Submissions.
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