Benjamin Gehlken v Office Furniture Direct Pty Ltd

[2016] FWC 4059

[2016] FWC 4059

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Benjamin Gehlken
v
Office Furniture Direct Pty Ltd
(U2016/4633)

DEPUTY PRESIDENT BARTEL ADELAIDE, 28 JUNE 2016

Termination of Employment - jurisdictional objections and substantive application.

Background

[1] Benjamin Gehlken (the applicant) was employed by Office Furniture Direct (OFD or the employer) in October 2014 as a casual Storeperson. The applicant worked at the employer’s warehouse in Port Adelaide. After finishing work on Friday 29 January 2016 he received an email from Michael Morton (Mr Morton), one of the Directors of OFD, with an attached letter advising of his redundancy on that day. He was to be paid one weeks’ pay to “… assist [him] in transitioning to another job.”

[2] The applicant subsequently filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act), contending that his dismissal was not a case of genuine redundancy. The employer has raised three jurisdictional objections, namely that: the dismissal was consistent with the Small Business Fair Dismissal Code (the Code); the applicant had not served the minimum employment period because his employment was not regular and systematic; and the dismissal was a case of genuine redundancy.

[3] The matter proceeded as a determinative conference. The applicant was represented by Bradley Cagney of the Shop Distributive and Allied Employees Association (the SDA). OFD was represented by Mr Morton, who gave evidence as did his brother, Daniel Morton, Operations Manager of OFD.

Does OFD meet the definition of a small business employer?

[4] In considering whether OFD meets the definition of a small business employer, I am required to take into account the number of employees employed by the employer at the particular time (i.e. immediately prior to the applicant’s termination), including employees employed by any associated entities of the employer. Casual employees are not to be included unless they have been engaged on a regular and systematic basis at the particular time. The dismissed employee and any other employees terminated at the same time are to be counted. 1

[5] In email correspondence from the employer, Mr Morton is identified as “AJM Project Manager”. The Commission sought clarification from Mr Morton on the legal name of the employer and was advised that Office Furniture Direct is the correct legal name of the respondent, which is “… owned by the AJM Commercial Interiors company and its relationship is entwined with AJM because it grew out of the range of goods and services AJM manufactures, distributes and sells”. 2

[6] On 17 May 2016 the Commission sent correspondence to Mr Morton advising that the information that he provided may have a bearing on whether the employer meets the definition of a small business employer. The correspondence included the definition of an “associated entity” and requested that Mr Morton give consideration to this issue in advance of the hearing.

[7] In email correspondence to Mr Cagney on 25 May 2016, Mr Morton stated that AJM and OFD “… are quite separate legal entities”. The email advised that OFD had 10 employees on the payroll at the time the applicant was dismissed and that AJM had 6 employees.

[8] I gained the impression in the course of the determinative conference that Mr Morton was deliberately vague on the relationship between the businesses. For example, when asked about his authority and position within OFD he initially stated that he is “… engaged to assist with HR and that sort of thing”. Later, when asked who the Directors of OFD were, he stated that “I think I might be a Director”. 3 Mr Morton confirmed that he was also a Director of AJM.4

[9] I am satisfied that OFD and AJM Interiors are associated entities. However I am unable to determine whether the employer meets the definition of a small business employer because there were a number of casual employees whose working arrangements have not been disclosed. This is information that is in the possession of the employer, however, other than a broad statement that some employees had irregular hours, 5 no evidence was provided. As my conclusion on the nature of the applicant’s employment differs from Mr Morton’s position (see below), his view on the nature of the engagement of other casual employees has limited weight.

[10] I have found that the Code was not complied with, if indeed it is applicable, for reasons that are set out later in the decision.

Minimum employment period

[11] Unfair dismissal is dealt with in Part 3-2 of the Fair Work Act 2009 (the Act). The scheme of this Part of the Act does not include or exclude casual employees from the unfair dismissal jurisdiction on the basis of their engagement (as casual employees). Rather, access to the jurisdiction is predicated on a number of conditions being met, which, for present purposes, includes a requirement that the employee has “… completed a period of employment … of at least the minimum employment period”. 6 The period of employment for a casual employee is the period of continuous service, excluding periods of employment when the employment was not on a regular and systematic basis and the employee did not have a reasonable expectation of continuing employment.

[12] The applicant’s weekly hours of work were provided by Mr Morton, as follows:

WEEK No.	PAY DATE	HOURS WORKED
1	24 Sep 2014	31
2	1 Oct 2014	30.5
3	8 Oct 2014	22
4	15 Oct 2014	38
5	22 Oct 2014	38
6	29 Oct 2014	38
7	5 Nov 2014	31
8	12 Nov 2014	37
9	19 Nov 2014	38
10	26 Nov 2014	32
11	3 Dec 2014	31.5
12	10 Dec 2014	22
13	17 Dec 2014	38
14	23 Dec 2014	38
15	31 Dec 2014	25
16	7 Jan 2015	21
17	14 Jan 2015	38
18	21 Jan 2015	38
19	28 Jan 2015	31.5
20	4 Feb 2015	38
21	11 Feb 2015	38
22	18 Feb 2015	37.25
23	25 Feb 2015	37.25
24	4 Mar 2015	38
25	11 Mar 2015	36.25
26	18 Mar 2015	38
27	25 Mar 2015	38
28	1 Apr 2015	38
29	8 Apr 2015	27.25
30	15 Apr 2015	38
31	22 Apr 2015	31.25
32	29 Apr 2015	38
33	6 May 2015	37
34	13 May 2015	38
35	20 May 2015	38
36	27 May 2015	38
37	3 June 2015	33.4
38	10 June 2015	32
39	17 June 2015	34
40	24 June 2015	38
41	1 Jul 2015	38
42	8 Jul 2015	35.5
43	15 Jul 2015	38
44	22 Jul 2015	35.5
45	29 Jul 2015	30
46	5 Aug 2015	36.5
47	12 Aug 2015	36.5
48	19 Aug 2015	32
49	26 Aug 2015	33
50	2 Sept 2015	21.75
51	9 Sept 2015	23
52	16 Sept 2015	23.5
53	22 Sept 2015	NIL
54	29 Sept 2015	NIL
55	29 Sept 2015	NIL
56	6 Oct 2015	NIL
57	13 Oct 2015	NIL
58	21 Oct 2015	35.75
59	27 Oct 2015	38
60	3 Nov 2015	38
61	10 Nov 2015	37.75
62	17 Nov 2015	38
63	25 Nov 2015	33.75
64	2 Dec 2015	36
65	9 Dec 2015	37.5
66	16 Dec 2015	38
67	23 Dec 2015	38
68	30 Dec 2015	20.7
69	6 Jan 2016	27.75
70	13 Jan 2016	38
71	20 Jan 2016	35.25
72	27 Jan 2016	28.5

[13] Mr Morton stated that the period in September/October 2015 that is recorded as nil hours reflects a period that the applicant was on workers compensation and certified unfit for work. However, I prefer the applicant’s evidence that he undertook modified duties and/or restricted hours during this period. The applicant submitted bank account statements which record payments of varying amounts made by OFD on a weekly basis throughout this period.

[14] There is no dispute that the applicant was engaged to perform 38 hours per week on Monday to Thursday from 7.00am to 3.30 pm and Friday from 7.00am to 1.00pm. 7 If he was required for more or less hours he would be advised accordingly. There was a period of 2 to 3 months in or around August 2015 to 14 October 2015 when the employer’s enterprise moved to a 4 day week due to a downturn in business (the 4 day week period).

[15] The applicant stated that he generally worked 32 to 38 hours per week. He said he worked less than 38 hours in some weeks because he had to assist his wife who had a serious illness, which could include collecting his children from school. His wife’s illness was known to the employer. Daniel Morton, to whom the applicant reported, co-operated with his release from work on these occasions.

[16] It is the employment and not the individual engagements that has to be regular and systematic. The hours per week do not have to be uniform. In this case there appears to have been an acceptance that the applicant’s default hours of work were 38 hours per week, in accordance with the arrangement agreed on commencement. While there are a number of weeks where the applicant worked less than 38 hours, this was due to time off for family responsibilities or other ad hoc changes implemented by the employer.

[17] I consider that this arrangement evinces a system or pattern of employment. There was an expectation that the applicant would attend for work on each week day. His work for the employer was not only frequent but consistent. I am satisfied that the applicant has 16 months continuous service and that his employment was on a regular and systematic basis throughout this period. He has therefore served the minimum employment period regardless of whether the employer meets the definition of a small business employer.

The Small Business Fair Dismissal Code

[18] The Code sets out the requirements upon an employer in the case of summary dismissal for serious and wilful misconduct and in the case of other dismissals associated with the capacity or conduct of the employee. It does not deal directly with a dismissal which is a case of genuine redundancy, although the Code does state that, among other things “a completed checklist” may be evidence of compliance with the Code.

[19] The checklist consists of a series of questions including whether the employee was dismissed because the employer didn’t require the person’s job to be done by anyone because of changes in the operational requirements of the business. If so, the employer is asked whether it complied with the consultation requirements in the modern award, enterprise agreement or other industrial instrument that applied and whether the employer considered if the employee could have been redeployed in the business or the business of an associated entity.

Was the dismissal a case of genuine redundancy?

[20] The questions in the Checklist, as referred to above, are directed to the requirements for a dismissal to be a case of genuine redundancy as set out in s.389 of the Act:

“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.”

[21] Accordingly, the considerations for the Commission are the same whether the employer is a small business employer or otherwise.

Operational requirements

[22] The employer’s case consisted of an array of sometimes contradictory scenarios to explain the circumstances of the applicant’s dismissal. Mr Morton stated that there was less work available for the store workers as a result of the introduction of new systems of work, including bar-coding, third party warehousing and a new order picking system. These changes were implemented throughout 2015 but the impact was not clear until January 2016. Also in January 2016, Tony Morton, the accountant for the business, advised Michael and Daniel Morton that the current employment level was unsustainable. The applicant and two other store workers were made redundant as there was insufficient work and/or resources to maintain their employment.

[23] Daniel Morton stated that the applicant was the sole picker at the Port Adelaide Warehouse. While there were four store workers engaged there, the other three positions did wrapping and other duties. There remained a need for one picker at the new Woodville North facility, which commenced on 2 February 2016. According to Daniel Morton, the position at Woodville North was given to the employee that had previously undertaken the quality assurance role at Port Adelaide. 8 He stated that the applicant made too many mistakes and “was not fit for the job”. 9 The following exchange took place under cross-examination:

“And the reason that Ben didn’t get it, was not because - so the job still exists, there’s still one order picker role?  -One order picker role, yes.

So the job still exists, but he just wasn’t - you’re saying that we didn’t think he was right to be the order picker going forward?  -Correct, absolutely.” 10

[24] Elsewhere in his evidence, Daniel Morton said that he personally filled the applicant’s position, as the following exchange indicates:

“So you are saying part of the reason was that you didn’t need him any longer and the part of the reason was that well, he just couldn’t do the job?  -That’s exactly right. It had to be that way because he couldn’t do the job. I knew I could do it and I had done it, so I moved into that role and did it and that’s the way it still is operating now.” 11

[25] I will return to the issue of the applicant’s performance shortly.

[26] I accept, and it was not challenged, that there was a requirement for less store workers at the Woodville North site.

[27] However, whether the applicant’s position was no longer required and he was therefore made redundant is complicated by the contradictory evidence of Mr Morton and Daniel Morton.

• If there were four store workers performing the same work and only one was required, the ‘excess’ employees, including the applicant, were made redundant. 12



• If the applicant was the only Picker at Port Adelaide, and his position was required at the Woodville site, then his dismissal is not a case of redundancy. To the extent that the employer chose to replace the applicant with another worker because it was dissatisfied with the applicant’s performance, this is a performance based dismissal.



• If the Picker’s position continued to exist at the Woodville North site but it was undertaken by Daniel Morton then applicant’s position no longer existed because the duties which made up his role were reallocated to another position (i.e. the position held by Daniel Morton). This is a case of redundancy. 13

[28] The evidentiary onus is on the employer to establish that the dismissal was a case of genuine redundancy and it has not discharged the onus upon it. I am unable to conclude that the applicant’s position was no longer required to be performed by anyone because of changes in the operational requirements and therefore the applicant’s dismissal does not meet the definition of a genuine redundancy.

Consultation

[29] The parties proceeded on the basis that the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award) 14 applied to the applicant’s employment. I am unclear whether this is correct but the consultation clause is the same in the other modern awards that could potentially apply to the applicant’s employment.15

[30] Under the consultation provision the employer was obliged to hold discussions with the applicant about the changes introduced and the effect on his employment, including measures to mitigate the adverse consequences upon him. In the present case the employer was obliged to consult the applicant once a decision was taken that he would no longer continue in the position he held. The applicant should then have been given the opportunity to raise matters with the employer, which the employer was obliged to consider, before a final decision was made.

[31] The applicant stated that he had not been advised that his employment was in jeopardy in the lead up to his dismissal. On the contrary, he said that Daniel Morton advised him at the 2015 Christmas function that all staff would be transferring from the Port Adelaide warehouse to the new facility at Woodville North. The applicant also stated that as he walked out the door on 29 January 2016, Daniel Morton said “see you Monday”. Unfortunately neither of these matters was put to Daniel Morton under cross-examination, so the weight that attaches to this evidence is limited.

[32] Mr Morton was unable to detail any consultation with the applicant in the lead up to the dismissal, but said that he “would have” had a discussion with the applicant about the need for redundancies. He referred to an email to the applicant in 4 June 2015 in which he stated that the business was struggling to make a profit and that “… everyone’s job is on the line …” Mr Morton also referred an email dated 28 September 2015 where he advised employees that the 4 day week would be continuing and that a staff member had been ‘let go’ due to the lack of work. As noted earlier, the employer subsequently reverted back to a 5-day week operation in October 2015.

[33] According to the employer’s evidence, the decision to terminate the applicant was made sometime in January 2016. 16 There was no consultation with the applicant after the decision was made. General advice to employees about the trading position of the business some months earlier does not constitute consultation under the modern award provisions. Accordingly, this is a further reason that the dismissal was not a case of genuine redundancy.17

[34] In relation to the issue of redeployment, Michael and Daniel Morton each stated that they considered whether there was an alternative position that the applicant could fill but that no such positions existed. It was conceded that there was no discussion with the applicant about redeployment. I am satisfied that there were no alternative positions reasonably available that the applicant could have undertaken. The applicant did not suggest that he was capable of filling any other positions or that any other positions were available.

Performance issues

[35] As noted earlier, I am not persuaded that the employer is a small business employer, but out of an abundance of caution I will assume that the employer meets the definition in s.23 of the Act. Having concluded that the applicant’s dismissal was not a case of genuine redundancy, it is appropriate to consider whether the employer complied with the provisions of the Code concerning dismissals based on the capacity or conduct of an employee.

[36] The employer relies on two matters in support of its position that the applicant was aware of issues with his performance. The first is an email Mr Morton sent to the applicant dated 4 June 2015. This was a response to a written request from the applicant for a full-time permanent position, in which the applicant stated:

“I am writing regarding full time employment as per our conversation last week.

I have tried to implement better processes and work ethics to benefit the company by saving time and money and hope to continue working with you to make changes where needed within the warehouse.

I feel I am a benefit to the company, I am happy with my pay, I am just looking to make my position full time as I have a large family and need the security of a full time employment. I applied for this position believing I would become full time after a trial period.

I am also interested in discussing the role of warehouse supervisor in the future.

Thank you for your time, I look forward to hearing from you soon.”

[37] Mr Morton’s response included a reference to having seen “… a complaining, lazy, irresponsible, complacent and extremely poor attitude from staff”, but that he was not referring to the applicant “specifically”. He referred to improvements implemented by the applicant and progress he had made, however he stated that the applicant still needed to improve his attitude and attention to detail. The email concludes that the applicant is “… one of the better members of our team and we appreciate the work you do …”

[38] Daniel Morton gave evidence that he regularly raised the applicant’s mistakes with him. I accept that mistakes were raised with the applicant from time to time, but that he was not the only person spoken to, as the employer conceded. 18 I find that, to the extent that the applicant made mistakes, his performance was no worse than, and most likely better than that of the other store workers.

[39] The following provisions of the Code apply to a dismissal on grounds other than serious or wilful misconduct:

“Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.”

[40] In the present matter there is no evidence that the applicant was warned about his performance or that a failure to improve may lead to dismissal. The applicant was given no opportunity to address the employer’s concerns about his performance, and this is particularly relevant where the applicant challenges the employer’s view that his performance was inadequate. It follows that the applicant did not have the opportunity to have a support person present.

[41] The employer did not comply with the Code.

The statutory context

[42] Section 385 of the Act sets out the criteria for determining if a person has been unfairly dismissed, as follows:

“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.”

[43] There is no dispute that the applicant has been dismissed. I have found that the dismissal was not a case of genuine redundancy and to the extent that it is applicable, the dismissal was not consistent with the Code. Accordingly, the Commission is now required to determine whether the dismissal was harsh, unjust or unreasonable. This is dealt with in s.387 of the Act as follows:

“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

(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.”

[44] To the extent that the employer relies on the applicant’s performance as the basis for dismissal, I am satisfied that the criteria in s.387(a), (b), (c) and (e) have not been met for reasons canvassed earlier in the decision. The criteria in s.387(f) and (g) are matters to be taken into account. The employer had, at most, sixteen employees. The business is a family owned and run enterprise with no human resources specialist.

[45] While this is of some weight, it is not significant in this case because of the absence of any semblance of a proper procedure leading to the applicant’s dismissal. The applicant was dismissed by email after he had left work for the day, with no advance warning that his employment was in jeopardy. This conduct points to a callous and insensitive approach, which is not explained by unfamiliarity with the correct protocols. The applicant’s family circumstances were known to the employer.

[46] Mr Morton referred to the applicant’s conduct after he was dismissed as evidence of his unsatisfactory character. It is agreed that the applicant called Daniel Morton several times on the following morning to discuss the situation but his calls were not answered. The applicant then drove to the Port Adelaide site and confronted Daniel Morton in an agitated manner, asking “what the hell is going on?” 19 I find that there was a heated discussion between the two and that voices were raised. That the applicant was upset is unsurprising in the circumstances, but in any event this post-dismissal conduct does not bear on the reasons for dismissal.

[47] Payment of one weeks’ wages on termination, while it will be taken into account, does not entitle the employer to abrogate its responsibility to deal fairly with applicant. The employer’s conduct is a relevant matter to be taken into account in accordance with s.387(h) of the Act. I conclude that the dismissal was harsh, unjust and unreasonable

[48] On the employer’s best case, the applicant’s dismissal was a case of redundancy. However the failure to consult and the manner of the dismissal would render the dismissal harsh and unreasonable in any event.

Compensation

[49] Since his dismissal the applicant has secured alternative employment at a slightly higher rate of pay and does not seek reinstatement. I am satisfied that reinstatement is not appropriate in all the circumstances and that an award of compensation in lieu of reinstatement is the appropriate remedy.

[50] Mr Cagney submitted that, but for the dismissal, the applicant would have been employed for a further six months. He seeks an amount of compensation equal to the applicant’s earnings for six months less the income received from the applicant’s new employment.

[51] The respondent made no submission on the quantum of compensation sought by the applicant, other than to protest that the compensation being sought by the applicant “… is the definition of harsh and unreasonable”. Mr Morton submitted that to award compensation would penalise a struggling business because the applicant “… wasn’t able to go out and find another job.” 20

[52] Compensation is dealt with under s.392 of the Act. For present purposes it is sufficient to set out the circumstances that the Commission is required to take into account in determining the quantum of the compensation.

Section 392(2)(a) – the effect on the viability of the business

[53] The employer did not present any evidence on the effect of an order for compensation on the viability of the business.

Section 392(2)(b) - the length of the person’s service with the employer

[54] The applicant had approximately 16 months service with the employer, which is not a lengthy period but not so short a period as to warrant a reduction in the compensation in all the circumstances.

Section 392(2)(c) - the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[55] Given the state of the employer’s evidence, the difficult task of assessing the likely duration of the applicant’s employment is made all the more difficult. It is appropriate to take into account that the employer was reducing employee numbers due to a downturn in business and the introduction of new systems of work. I have also accepted that redeployment of the applicant to another position within OFD or AJM Interiors was not an available option for the employer. However, taking into account Daniel Morton’s evidence that the position undertaken by the applicant continued to exist, I consider that a period of three months is a fair estimate of the likely duration of employment.

Section 392(2)(d) - the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[56] The applicant has attempted to mitigate his loss and applied for a number of positions before he was successful. His new employment is also as a casual store worker, and up to 15 May 2016 he had earned $3.002.91 gross, which was said to be for a period of approximately four weeks. He is also undertaking study to gain the appropriate license to become a security officer.

Section 392(2)(e) and (f) - 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 or reasonably likely to be earned during the period between the making of the order for compensation and the actual compensation

[57] The applicant commenced employment with his new employer in mid to late April 2016 and it is continuing. His earnings from this employment appear to be commensurate with his earnings whilst employed with OFD. Given my view as to the estimated duration of employment, there is a one week period of overlap which will be taken into account.

Section 392(2)(g) - any other matter that the FWC considers relevant

[58] There are no other matters

[59] Section 392(3) of the Act provides that the amount of compensation otherwise ordered must be reduced if the misconduct of the person contributed to the decision to dismiss. For the reasons outlined earlier in the decision I am satisfied that the applicant’s performance was not a valid reason for dismissal and therefore that the compensation should not be reduced.

Quantum

[60] I have adopted the approach to compensation endorsed by a Full Bench of the Australian Industrial Relations Commission in Ellawala v Australian Postal Corporation. 21

[61] The applicant would have earned an amount of $10,492.42 during the three month estimated duration of employment up to 29 April 2016. This figure has been calculated using the average weekly hours worked by the applicant over the last 15 weeks of his employment, this being the period after the employer reverted to a 5-day week. 22 From this amount, the payment of $877.00 on termination should be deducted, resulting in earnings over the estimated period of employment of $9,552.42.

[62] I have deducted an amount of 10% on account of contingencies having regard to the employer’s economic position. This amount would have been higher but for the introduction of new technology which is designed to improve the business efficiency and the fact that the business continues to trade on five days per week. A 10% reduction reduces the amount otherwise received over the estimated period of employment by $955.24 to $8,597.18.

[63] A further reduction of $750.73 has been made on account of the applicant’s earnings in his new employment, which commenced in or around mid-April 2016. 23 The resulting figure is $7,846.45.

[64] In my view this is a fair quantum of compensation having regard to all relevant circumstances. An order to this effect is issued with this decision.

DEPUTY PRESIDENT

Appearances:

Mr B Cagney, Shop Distributive and Allied Employees Association – South Australian Branch for the Applicant

Mr M Morton for the Respondent

Hearing details:

2016:

Adelaide;

2 June.

 1   Section 23 of the Act.

 2   Email from Mr Morton dated 13 May 2016.

 3   At PN49, 54.

 4   At PN55.

 5   At PN145.

 6   Section 382(a) of the Act.

 7   This is the evidence of Michael Morton at PN89, supported by Daniel Morton at PN292-3.

 8   At PN430-438.

 9   At PN420.

 10   At PN439-40.

 11   At PN421, see also PN323, 420.

 12   Markac v CSR Limited, [2010] FWA 4548.

 13   Jones v Department of Energy and Minerals, (1995) 60 IR 304.

 14   MA000010.

 15   Such as the Storage Services and Wholesale Award 2010 or the General Retail Industry Award 2010.

 16   At PN234.

 17   Section 389(1)(b) of the Act.

 18   At PN420, 429.

 19   At PN589-592.

 20   At PN826.

 21 Unreported, AIRCFB, Ross VP, Williams SDP, Gay C; 17 April 2000, Print S5109 at [33].

 22   34.73 average hours per week, at $23.10 per hour for 13 weeks.

 23   The amount of $750.73 equals a quarter of the applicant’s earnings of $3002.91 for a four week period.

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