Bank of Sydney Ltd T/A Bank of Sydney v Repici
[2015] FWCFB 7939
•20 NOVEMBER 2015
| [2015] FWCFB 7939 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
Pasqualina Repici
(C2015/4952)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 20 NOVEMBER 2015 |
Appeal against decisions [[2015] FWC 4571], [[2015] FWC 4963] and Order PR569654 of Commissioner Cribb at Melbourne on 8 July 2015 and 21 July 2015 in matter number U2014/15399 – payment in lieu of notice – compensation.
[1] On 16 October 2015 we issued a decision in relation to an appeal by the Bank of Sydney 1. In relation to Commissioner Cribb’s second decision and the order2 we conclude as follows:
‘The result of the appeal
[28] The Bank has demonstrated that Commissioner Cribb was in error when she stated that she would take ‘take into account’ the payment in lieu of notice, and then did not do so. She issued a decision and order which did not take this into account. In our view it is in the public interest that permission to appeal be granted in order to enable the parties to put submissions on whether the appeal should be granted in order to maintain consistency between Commission decisions and orders, and other matters. We grant permission to appeal in relation to this issue only.
[29] The notice of listing and directions for this appeal stated that the matter ‘was listed for hearing concerning the issue of permission to appeal only’. Whether the appeal should be granted and order that should be made as a result of permission to appeal being granted is another matter.
[30] Ms Repici did not appear at the hearing. However, she is entitled to be given the opportunity to put a case on the effect of the error we have identified on the order of compensation, if any. We issue directions to give the Bank the opportunity to put a case, and for her to reply to it.’
Submissions
[2] On 16 October 2015 Directions were issued in relation to the filing of submissions. The Bank of Sydney (the Bank) and Ms Repici filed their respective submissions and we have taken these submissions into account. The Bank submitted that the payment ordered should be reduced by the amount of notice, namely $3,581.61 3. Ms Repici submitted that she should not be ‘further penalized for what the Bank has done’4 for various reasons relating to the merits of the matter, such as that a reference was refused, and she was ‘dismissed on the spot’.5 The Bank replied to those submissions on 16 November 2015 and we have taken those submissions into account. It was agreed that the issue of remedy would be determined on the basis of these written submissions.
Consideration
[3] We have decided that it is appropriate to take into account the payment in lieu of notice, consistent with the submissions of the Bank. It is also consistent with the decision of Commissioner Cribb, and other decisions including Jemal v ISS Australia 6, Gleeson v Blenners Transport7, Bradley Auberson v Clough Downer Joint Venture Construction Pty Ltd8, and Anthony Davey v JR Bulk Liquid Transport9. We will therefore quash the order of compensation and make an order of compensation ourselves.
[4] Reinstatement is not sought and by virtue of section 391 of the Fair Work Act2009 (the Act), it is not appropriate. We agree with Commissioner Cribb’s conclusions in paragraph 52.
[5] In the alternative we are required by section 392 of the Act to consider an order of compensation in lieu of reinstatement.
[6] In Brett Haigh v Bradken Resources Pty Ltd T/A Bradken 10 the Fair Work Commission said:
[10]The frequently quoted case on compensation calculations is Sprigg v Paul Licensed Festival Supermarket in which a Full Bench of the Australian Industrial Relations Commission (AIRC) confirmed the following steps in determining compensation under the unfair dismissal provisions of the Workplace Relations Act:
“1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated,
2. Deduct monies earned since termination,
3. Deductions for contingencies,
4. Calculate any impact of taxation,
5. Apply the legislative cap.”
[11]The legislation has been amended since that time by permitting a reduction in an amount otherwise payable if an employee’s misconduct contributed to the employers decision to dismiss. The Full Bench decision in Sprigg has also been the subject of comment by other Full benches. In Smith v Moore Paragon a Full Bench of the AIRC said:
“COMMENT IN RELATION TO THE GUIDELINES IN SPRIGG
[32] It seems to us that the amounts arrived at by the application of the guidelines in Sprigg in the present matter are on their face manifestly inadequate for employees with the length of service of the Appellants, the circumstances of their dismissal and their poor prospects for future employment. This causes us to sound a warning in relation to the application of Sprigg. The guidelines laid down in Sprigg and refined in Ellawala v Australian Postal Commission are clearly designed to serve the proper and desirable purpose of fostering uniformity and consistency in decision-making by individual members of the Commission when assessing compensation pursuant to s.170CH(6). However, those guidelines are not a substitute for the words of the Act. By virtue of s.170CH(2), any remedy ordered by the Commission must be a remedy that the Commission considers “appropriate” having regard to all the circumstances of the case including the matters set out in s.170CH(2). Section 170CH(6) confers a general discretion “if the Commission considers it appropriate in all the circumstances of the case” to “make an order requiring the employer to pay the employee an amount ordered by Commission in lieu of reinstatement” subject to the Commission having regard “to all the circumstances of the case including” the matters listed in s.170CH(7) - the same list of matters set out in s.170CH(2) - and subject also to the `cap’ provided for in s.170CH(8) and (9). If an application of the guidelines in Sprigg yields an amount which appears either clearly excessive or clearly inadequate, then the member should reassess any assumptions or intermediate conclusions made or reached in applying the guidelines so as to ensure that the level of compensation is in an amount that the member considers appropriate having regard “to all the circumstances of the case” including the matters listed in s.170CH(7) and subject to the `cap’ provided for in s.170CH(8) and (9). In this context it should be borne in mind that the result yielded by an application of the Sprigg guidelines may vary greatly depending upon particular findings in relation to the various steps including, in particular, step one, which necessarily involves assessments as to future events that will often be problematic.” [footnotes omitted]
[7] In relation to the factors we are required to have regard to we, with respect, adopt the decision of Commissioner Cribb in relation to each of the factors set out sections 392 and 393 with one exception, remuneration earned. 11 In relation to that we add the amount of pay in lieu of notice, or $3,581.61. The result is that the calculations regarding contingencies and misconduct deductions need to be altered, namely the calculations in paragraphs 14-21 of Commissioner Cribb’s decision on compensation. The provisional amount of $42,979.32 gross is reduced by the amount of payment in lieu of notice, or $3,581.61, so that it is $39,397.71. The deduction of 20 per cent for contingencies reduces this amount by $7,879.54 to $31,518.17. The reduction of this amount by 40 per cent on account of misconduct pursuant to section 392(3) of the Act reduces this amount by $12,607.27 to $18,910.90. This amount is less than the compensation cap in section 392(5) of the Act.
[8] We do not in all the circumstances propose to add to or reduce this amount on account of any additional consideration consistent with Brett Haigh v Bradken Resources Pty Ltd T/A Bradken. It is appropriate to order the Bank to pay this amount to Ms Repici. We will quash the order made and issue this order. An order to this effect is contained in PR574086.
DEPUTY PRESIDENT
1 [2015] FWCFB 6712.
2 [2015] FWC 4963] and Order PR569654.
3 Submissions of the Bank of Sydney, 30 October 2015; Submissions in Reply of the Bank of Sydney, 16 November 2015.
4 Submissions of Ms Repici, 1 November 2015.
5 Ibid.
6 [2015] FWC 776 at 85 and 90.
7 [2013] FWC 3394 at 25.
8 [2015] FWC 1179 at 113.
9 [2014] FWC 9307 at 11.
10 [2014] FWCFB 236.
11 Section 392(2)(c), Fair Work Act 2009
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<Price code A, PR574080>
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