Baker v Scott Page Motor Body Repairs
[2016] FWC 1003
•17 February 2016
[2016] FWC 1003
DECISION
| Fair Work Act 2009 | |
| s.394—Unfair dismissal | |
| Damion Baker | |
| v | |
| Mistcape Pty Ltd T/A Scott Page Motor Body Repairs | |
| (U2015/9082) | |
| DEPUTY PRESIDENT LAWRENCE | SYDNEY, 17 FEBRUARY 2016 |
| Application for relief from unfair dismissal. |
[1] On 3 July 2015 Mr Damion Baker (the Applicant) lodged with the Fair Work
Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) an
application for a remedy for unfair dismissal against his former employer Mistcape Pty Ltd
T/A Scott Page Motor Body Repairs (the Respondent).
[2] The Applicant commenced employment with the Respondent on 12 March 2000. He
was notified of his dismissal on 12 June 2015 but it did not take effed until 15 June 2015.
[3] The Applicant says that he was dismissed by text message with no explanation given
despite repeated requests.
[4] The Applicant was employed in the Respondent’s smash repair business in Parkes,
New South Wales as a panel beater.
[5] The Respondent’s F3 response was filed, belatedly on 14 August 2015. It asserted that
the dismissal was a genuine redundancy because the business is closing down and accordingly
there was no work.
[6] The Respondent also asserted:
The relevant award was the Vehicle Manufacturing, Repair, Services and Retail
Award 2010 [MA000089].
| | The Applicant’s gross wage was $1,200 per week. |
| | The Respondent had three employees |
[7] The response was filed by Mr C. Helby, a Parkes solicitor, signed by Mr Scott Page
the director of the Respondent.
[2016] FWC 1003
Commission Proceedings
[8] The matter was conciliated on 29 July 2015 but did not settle.
[9] I conducted a telephone programming hearing on 8 September. The Applicant was
represented by another Parkes solicitor at the mention but became self-represented soon
thereafter.
[10] No submissions or evidence had been filed at this stage. Accordingly, I issued
preliminary directions on 26 August which were designed to explore the possibility of
settlement.
[11] The solicitor then acting for the Applicant sent a formal claim to Mr Helby for unpaid
wages and entitlements for $24,800 in an attempt to settle the matter. The response of Mr
Helby, on 7 September 2015, was not to deny the claim, but to assert that as the business was
not operating there was no money to pay the claim.
[12] The result of the 8 September mention was that directions were issued for the filing of
submissions and evidence.
[13] At a further mention on 3 November it was agreed by Mr Helby and the Applicant that
the matter would be dealt with in a telephone hearing on 2 December 2015.
[14] The Applicant represented himself. Mr Helby appeared for the Respondent. Mr Scott
Page did not appear and no satisfactory explanation was provided by Mr Helby for his non-
participation in any of the proceedings.
[15] The Applicant relied on his affidavit and his oral submission.
[16] The Respondent relied on a written submission and the untested affidavit of Mr Scott
| Page. |
Protection from Unfair Dismissal
[17] An order for reinstatement or compensation may only be issued where I am satisfied
the Applicant was protected from unfair dismissal at the time of the dismissal
[18] Section 382 sets out the circumstances that must exist for the applicant to be protected
from unfair dismissal:
“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;
[2016] FWC 1003
(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.”
[19] As I have already noted it is conceded that the Applicant was covered by a modern
award and his income was well below the high income threshold. It was conceded therefore
that he was a person protected from unfair dismissal in accordance with s.382.
[20] Section 396 provides that certain matters must be determined by the Commission
before proceeding to deal with the merits of a matter. It provides:
“396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order
under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in
subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair
Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[21] As can be seen, the Respondent raised both compliance with the Small Business Fair
Dismissal Code and genuine redundancy in its response.
Was the dismissal unfair?
[22] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the
circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
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.”
[2016] FWC 1003
[23] The substantive defence of the Respondent was that the dismissal was a genuine
redundancy.
[24] Section 389 provides:
“389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed
by anyone because of changes in the operational requirements of the
employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or
enterprise agreement that applied to the employment to consult about the
redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been
reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
Harsh, Unjust or Unreasonable
[25] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable.
The criteria I must take into account when assessing whether the dismissal was harsh, unjust
or unreasonable are set out at s.387 of the Act:
“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
[2016] FWC 1003
(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.
The Submissions of the Parties
[26] The Applicant submitted that dismissal was harsh, unjust and unreasonable because:
| | The Applicant says that he had no problems in working for the Respondent until 11 |
| June 2015 when he asked for time off to accompany his daughter to Orange for a | |
| medical appointment. He was given the day off. | |
| | On Friday 12 June he rang the Respondent and left a message on the answering |
| machine that he would not be in as his daughter was still recovering from ear surgery | |
| on the previous day. He then received a text message from Scott Page to say that he | |
| was needed and then one telling him to “pick up his tools on Monday”. | |
| | On Monday, 15 June, when the Applicant went into work, he was told by Scott Page: |
| “. . . tool box is over there, see you later”. | |
| | The Applicant’s termination pay was not made up. When the Applicant went in on |
| Tuesday 16 June to request it again, he was told that only untaken annual leave could | |
| be paid out. Payment in lieu of notice and long service leave were not able to be paid. | |
| Scott Page appeared to say that the reason for the dismissal was the time the Applicant | |
| took off for his daughter’s medical treatment. | |
| | At the end of July, the Applicant got a job as a casual NRMA roadside assistant. |
| | The Applicant denies that this is a redundancy and says that the business is still |
| operating in Parkes. |
[27] The Respondent submitted that the Applicant’s dismissal was not harsh, unjust or
unreasonable because:
| | The business ceased to operate on 30 June 2015 and the Applicant was aware that this |
| was going to happen. The premises have not been sold, however. | |
| | The Respondent submits that there was a genuine redundancy. |
[2016] FWC 1003
| | The Applicant was expected back at work the day after his daughter’s surgery but did |
| not turn up. The Respondent asserts that only a text message was received on Friday, | |
| 12 June. |
Given the imminent closure of the business, Scott Page decided that it was the
appropriate time for the Applicant to finish up.
[28] The Applicant’s response was that employees were told that the building was to be
sold not the business. He denies that he had been told that he would be terminated at the end
of June. He also denies that the business has ceased operating and says there remained other
employees there after that date. At the hearing the Applicant insisted that there were still
employees working on the site.
[29] The question in this case is whether there is a genuine redundancy and whether the
Respondent has complied with s.389. There was relatively little evidence provided by both
parties, especially the Respondent. Mr Scott Page did not participate in any of the proceedings
despite requests for him to do so. The Respondent’s evidence must therefore be given
appropriate weight in view of this deficiency.
[30] Where there is a conflict, I prefer the evidence of the Applicant who provided a
coherent and credible account of events. On the basis of the evidence, the Respondent has not
established that this was a genuine redundancy in terms of s.389. While it may be the case that
the business has now ceased to operate, that was not the case at the time of the Applicant’s
dismissal. In addition, it is clear that the Respondent did not comply with its consultation
obligations as required by s.389(1)(b).
[31] Accordingly, I am satisfied that s.385(d) does not apply in this case. I will now
consider each of the issues contained in s.387.
Approach of the Commission
[32] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or
unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185
CLR 410 at 465 by McHugh and Gummow JJ as follows:
“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
[33] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998)
Q9292 (Rose) restated the above proposition and also stated:
“In my view whether there has been a `fair go all round’ is a matter which I think is
relevant and hence I am to have regard to it determining whether the termination was
[2016] FWC 1003harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be
taken into account.”
Valid Reason - s.387(a)
[34] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench
said ‘In our view, the consideration of whether there was a valid reason for termination is a
separate issue from the determination of whether a termination was harsh, unjust or
unreasonable’.
[35] Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 said:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or
prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same
time the reason must be valid in the context of the employee’s capacity or conduct, or
based upon the operational requirements of the employer’s business. Further, in
considering whether a reason is valid, it must be remembered that the requirement
applies in the practical sphere of the relationship between an employer and an
employee where each has rights and privileges and duties and obligations conferred
and imposed on them. The provisions must ‘be applied in a practical, commonsense
way to ensure that the employer and employee are each treated fairly ...”
[36] In Parmalat Food Products Pty Ltd v Wililo, [2011] FWAFB 1166, the Full Bench
| held: |
“The existence of a valid reason is a very important consideration in any unfair
dismissal case. The absence of a valid reason will almost invariably render the
termination unfair. The finding of a valid reason is a very important consideration in
establishing the fairness of a termination. Having found a valid reason for termination
amounting to serious misconduct and compliance with the statutory requirements for
procedural fairness it would only be if significant mitigating factors are present that a
conclusion of harshness is open.”
[37] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia
Post [2013] FWCFB 6191 provides a useful summary of the approach to be taken by the
Commission in weighing the factors to be considered under s.387:
“[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v
Commonwealth – that s.170DE(2) by its operation could render invalid a reason that
would otherwise have been a valid reason. The fact that some dismissals are “harsh,
unjust or unreasonable” notwithstanding the existence of a “valid reason” means that
the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class
of dismissals where there is no “valid reason” for the dismissal.
[21] Section 387 specifies a range of matters that must be considered in each case.
Section 387(h) requires consideration of “any other matters that FWA considers
relevant”. In any given case, there will be a range of matters, beyond those specified in
s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or
[2016] FWC 1003
unreasonable” and thus are “relevant matters” that must be considered pursuant to
s.387(h).
[22] Often it will not make any difference to the ultimate outcome whether a particular
circumstance is considered pursuant to s.387(a) in determining whether there is a valid
reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate
determination of whether the dismissal was “harsh, unjust or unreasonable”. However,
in some cases it may matter greatly. That will tend to be so when the particular
misconduct, shorn of the personal circumstances of the employee and the broader
context beyond the particular acts or omissions that are said to constitute the
misconduct, is clearly a matter that a reasonable employer is entitled to take seriously.
This is such a case.
...
[34] In considering whether there was a valid reason for a dismissal under s.387(a), the
reason(s) being considered are the employer’s reason(s). In a misconduct case, the
Commission is concerned with whether the misconduct in fact occurred, not with
whether the employer has reasonable grounds to believe that it occurred (eg. Yew v
ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998)
88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1). “
[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is
assessed from the perspective of the employer and by reference to the acts or
omissions that constitute the alleged misconduct on which the employer relied,
considered in isolation from the broader context in which they occurred. It is the
reason of the employer, assessed from the perspective of the employer, that must be a
“valid reason” where “valid” has its ordinary meaning of “sound, defensible or well
founded”. As Northrop J noted, the requirement for a valid reason “should not impose
a severe barrier to the right of an employer to dismiss an employee”.
[36] A failure to comply with a lawful and reasonable policy is a breach of the
fundamental term of the contract of employment that obliges employees to comply
with the lawful and reasonable directions of the employer. In this way, a substantial
and wilful breach of a policy will often, if not usually, constitute a “valid reason” for
dismissal.
. . .
[58] Reaching an overall determination of whether a given dismissal was “harsh,
unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a
weighing process. The Commission is required to consider all of the circumstances of
the case, having particular regard to the matters specified in s.387, and then weigh:
(i) the gravity of the misconduct and other circumstances weighing in
favour of the dismissal not being harsh, unjust or unreasonable;
against (ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that
[2016] FWC 1003dismissal was a fair and proportionate response to the particular misconduct.”
[38] I respectfully adopt this approach.
[39] At the hearing Mr Helby conceded that what was done on 12 and 15 June to the
Applicant was not appropriate. I am satisfied that there was no valid reason for the
Applicant’s dismissal relating to his performance or conduct. There was no criticism by the
Respondent of the Applicant’s skills, work record or attendance over 15 years’ service. The
Applicant’s conduct on 12 June, following his daughter’s surgery was reasonable and
appropriate.
Notification of a valid reason – s.387 (b)
[40] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas
Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR
137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services
Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the
Australian Industrial Relations Commission dealing with similar provision of the Workplace
Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee
be notified of a valid reason for their termination before any decision is taken
to terminate their employment in order to provide them with an opportunity to
respond to the reason identified. Section 170(3) (b) and (c) would have very
little (if any) practical effect if it was sufficient to notify employees and give
them an opportunity to respond after a decision had been taken to terminate
their employment. Much like shutting the stable door after the horse has
bolted.” Ibid at 151.
[41] I find that the Respondent acted contrary to s.387(b). The Applicant was not notified
of the reason for dismissal before the decision was taken.
Opportunity to respond s.387(c)
[42] An employee protected from unfair dismissal must be provided with an opportunity to
respond to any reason for dismissal way to ensure the employee relating to the conduct or
capacity of the person. This criterion is to be applied in a common sense is treated fairly and
should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.
[43] It follows that the Applicant had no opportunity to respond to the reason for the
dismissal.
Unreasonable refusal by the employer to allow a support person – s.387(d)
[44] Where an employee protected from unfair dismissal has requested a support person be
present to assist in discussions relating to the dismissal, the employer should not unreasonably
refuse that person being present.
[2016] FWC 1003
[45] This factor was not relevant.
Warnings regarding unsatisfactory performance – s.387(e)
[46] The Applicant had been given no warnings.
Impact of the size of the Respondent on procedures followed – s.387(f)
[47] The size of the business probably contributed to the absence of procedure but does not
excuse it, however.
Absence of dedicated human resources management specialist/expertise on procedures
followed - s.387(g)
[48] The lack of human resources specialists did contribute to the manner of the
Applicant’s dismissal.
Any other matter that the FWC considers relevant
[49] Section 387(h) allows the Commission to consider any other matters it considers
relevant. These must be considered in the context of the object of Part 3 - 2 of the Act
contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and
the employee concerned”.
[50] The Applicant’s relatively lengthy service with no evidence of blemishes on his
employment record should be taken into account. As well, the difficulty of obtaining
comparable employment in a regional area should be considered.
[51] Accordingly, I find that the dismissal was harsh, unjust and unreasonable. I find that
the dismissal was unfair within the terms of s.385.
Compensation
[52] Having found that the dismissal was unfair, I now turn to the appropriate remedy.
[53] Section 390 of the Act sets out the circumstances in which I may make an order for
reinstatement or compensation:
“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.
[2016] FWC 1003
(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.”
[54] The Applicant does not seek reinstatement obviously it would not be appropriate.
[55] Section 390(3)(b) provides that I may only issue an order for compensation to the
Applicant if it is appropriate in all the circumstances.
[56] I have found that the applicant has been unfairly dismissed and that reinstatement is
not appropriate in all the circumstances. I am satisfied that an order for compensation should
be made.
[57] Section 392 of the Act sets out the circumstances that must be taken into consideration
when determining an amount of compensation, the effect of any findings of misconduct on
that compensation amount and the upper limit of compensation that may be ordered provides:
“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.
[2016] FWC 1003
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.”
[58] The method for calculating compensation under s.392 of the Act was dealt with by a
Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement
Villages Inc. T/A Ottrey Lodge, [2013] FWCFB 431 (Bowden). In that decision the Full
Bench set out the order in which the criteria and other factors should be applied, taking into
account authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed
Festival Supermarket, (1998) 88 IR 21 and Ellawala v Australian Postal Corporation,
Print S5109 (Ellawala). I have adopted the methodology utilised in Bowden in determining
the amount of a payment of compensation.
[59] I will now consider each of the criteria in s.392 of the Act.
Remuneration that would have been received: s.392(2)(c)
[2016] FWC 1003
[60] The Applicant earned $1,200 per week. I accept that the Applicant intended to remain
in employment with the Respondent. There is obviously uncertainty about the on-going status
of the business. The Respondent’s evidence is however, highly unsatisfactory. I do not believe
that the Applicant should be prejudiced because of this.
[61] I determine that the period of time the Applicant would have remained employed by
the Respondent, or would have likely remained employed with the Respondent, had he not
been dismissed is four months (16 weeks). The remuneration he would have received is
therefore $19,200.
Remuneration earned: s.392(2)(e)
[62] The Applicant got another job about 5 ½ weeks after his dismissal but the income
varied between $400 and $900 per week and the hours are irregular. I have made a small
adjustment on this ground so that the compensation will be reduced to $17,000.
Income likely to be earned: - s.392(2)(f)
[63] This matter is not relevant.
Other matters: - s.392(2)(g)
[64] There are no other matters that I consider appropriate to consider.
Viability: - s.392(2)(a)
[65] This matter is not relevant.
Length of Service: - s.392(2)(b)
[66] The Applicant’s lengthy service is a factor which has been taken into account.
Mitigating efforts: - s.392(2)(d)
[67] In considering whether the Applicant has taken steps to mitigate the loss suffered as a
result of the dismissal I should take into account whether the Applicant acted reasonably in
the circumstances, (Ellawala).
[68] I consider that the Applicant has taken steps to mitigate his loss by seeking
comparable employment.
Misconduct: s.392(3)
[69] No adjustment to the compensation is appropriate on this ground.
Shock, Distress: s.392(4)
[70] I note that the amount of compensation calculated does not include a component for
shock, humiliation or distress.
[2016] FWC 1003
Compensation cap: s.392(5)
[71] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the
total amount of remuneration received by the Applicant, or to which the Applicant was
entitled, for any period of employment with the employer during the 26 weeks immediately
before the dismissal, or half the amount of the high income threshold immediately prior to the
dismissal.
[72] The high income threshold component is $68,350.
[73] The amount of compensation I will order does not exceed the compensation cap.
[74] I will order the Respondent to pay to the Applicant an amount of $17,000.
Conclusion
[75] I am satisfied that the Applicant was protected from unfair dismissal, and that the
dismissal was unfair and a remedy of compensation is appropriate. In accordance with
s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all
round’.
[76] An Order (PR577150) will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
D. Baker, self-represented Applicant;
C. Helby, solicitor for the Respondent.
Hearing details:
2015
Telephone Conference:
August 25 November 2
Telephone Hearing:
December 2.
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