Brenton Frankish v Itradegolf Pty Ltd
[2023] FWC 53
•9 JANUARY 2023
[2023] FWC 53
The attached document replaces the document previously issued with the above code on 9 January 2023 to amend endnote referencing.
Associate to Deputy President Dobson
Dated 11 January 2023
| [2023] FWC 53 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brenton Frankish
v
Itradegolf Pty Ltd
(U2022/8768)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 9 JANUARY 2023 |
Application for relief from unfair dismissal – no genuine redundancy – termination at the initiative of the employer – no valid reason – compensation ordered.
On 28 August 2022, Mr Brenton Frankish (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Itradegolf Pty Ltd (Respondent). The Applicant seeks compensation as a remedy.
On his original Form F2 Unfair Dismissal application the Applicant listed the Respondent’s legal name as ‘Justin Romer’. Following a conversation with Commission staff on 29 August 2022, the Applicant advised he would file an amended application, listing the name of the Respondent as ‘Itradegolf Pty Ltd’. The amended application was received within 21 days of the date of termination. The Respondent has not filed any material to the contrary.
Statement
The parties in this matter were also involved in an application pursuant to s.739 of the Act which was before Commissioner Hunt[1] (Statement). In the Statement issued by the Commissioner, the Commissioner expressed that the Respondent should reach an agreement with the Applicant and pay his owed wages and entitlements to sever the employment relationship. The Commissioner continued to state that should the Respondent fail to engage with the applicant, that he would be open to bring an application under s.394[2].
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(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;
(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.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.
Background
The background to the matter, uncontested at hearing, is set out in the following paragraphs.
The Applicant commenced working for the Respondent on or around February 2021 under the General Retail Industry Award 2020. The Applicant was stood down on 18 July 2022 and the Applicant determined that his employment ceased on 29 August 2022 based on the Statement[3].
On 29 August 2022, the Commission sent a courtesy letter to the Respondent using the email address provided by the Applicant and which had previously been used and responded to in the matter before Commissioner Hunt.[4] This letter informed the Respondent that the Applicant had filed an Unfair Dismissal application and that the Commission required information from both the Applicant and the Respondent. The Applicant provided the required information that same day.
On 16 September 2022, the Commission attempted to contact Justin Romer (Mr J. Romer) of the Respondent using the contact number provided by the Applicant. Mr J. Romer did not answer the call. The Commission then contacted the Respondent using the contact number listed for the Respondent’s premises and was advised by an individual that Mr J. Romer was not available.
The Commission issued a notice of listing for a conciliation before a staff conciliator to take place on 14 October 2022. The Notice of listing and a copy of the documents as filed by the Applicant were sent via post to the Respondent’s premises. The documents and notice of listing were also sent to the Respondent’s email address.
On 11 October 2022, the Commission again attempted to contact the Respondent by telephone and left a voice message informing that the Commission was seeking a Form F3 Employer Response to an Unfair Dismissal Application and their contact number for the conciliation. The voice message also advised that in the absence of any reply from them, that the matter may be referred to a Member of the Commission for Hearing.
On 14 October 2022, the Commission advised the parties by way of voice message and email that the staff conciliator was unavailable and that the matter would be relisted. The matter was subsequently listed on 1 November 2022, and the notice of listing issued to the parties by email on 21 October 2022.
On 27 October 2022, the Commission again attempted to contact the Respondent. The Commission attempted to contact Mr J. Romer on his mobile number and left a message requesting he urgently contact the Commission. The Commission then attempted to contact the landline number for the Respondent’s premises to no avail and was unable to leave a voicemail message. The Commission finally attempted to contact the number listed on the Respondent’s website and left a voice message requesting they urgently call the Commission. The Commission also sent an email to the Respondent, advising that they had not filed their Form F3 and should do so as soon as possible.
On this same day, the Commission attempted to contact the Applicant and left a voice message requesting that if he had any other contact information for the Respondent, that he provide this to the Commission by email.
On 27 October 2022, a staff Conciliator again attempted to contact the Respondent for the conciliation. The Respondent again did not answer.
On 2 November 2022 the Applicant confirmed by email that he wished for the matter to proceed before a member for Hearing.
On 4 November 2022, the Applicant sent an email to the Commission, copied to the Respondent which contained screenshots of text messages allegedly from the Respondent and allegedly from the same number the Commission had been contacting the Respondent without success. The text messages involved, among other things, a request that the Applicant return keys to the Respondent. The Applicant responded to these messages advising that the Commission had attempted to contact the Respondent multiple times in respect of the current matter.
On 11 November 2022 the matter was allocated to me.
On 14 November 2022, I issued directions for the filing of material and listing the matter for conference on 24 November 2022. These documents were issued by my associate to the email addresses provided by the Applicant. Due to emergent circumstances, the matter was relisted for conference before Commissioner Riordan and would occur on 29 November 2022.
On 29 November 2022, the Associate to Commissioner Riordan made several attempts to contact the Respondent. Specifically, both Mr J. Romer and Mr Corey Romer (Manager, Mr C. Romer) were contacted 4 times each. Several voice messages were left for both Mr J. Romer and Mr C. Romer.
The Respondent did not return any calls or participate in the conference before Commissioner Riordan.
Later that day, I instructed my associate to send correspondence to both parties. Both parties had failed to comply with the Directions issued on 14 November 2022. The correspondence advised as follows:
“Paragraph [3] required the Respondent to file their form F3 – Employer Response by no later than 4:00pm, Monday 21 November 2022.
Paragraph [5] required the Applicant to file his material in support of his application by no later than 4:00pm (AEST) Monday, 28 November 2022.
Neither party has complied with these directions.
Itradegolf Pty Ltd – You are directed to file the Form F3 as soon as possible and include an explanation of why you failed to comply with this direction and your failure to attend a conference before a Commission member. In the absence of any response from you, the matter may be determined without further reference to you. Should a decision on the matter be made in the Applicant’s favour, the resultant order will be enforceable.
Mr Frankish – You are directed to file your material by no later than 4:00pm on Friday 2 December 2022. Your material must be accompanied by an explanation for your failure to comply with the direction of the Commission.
…”
On 30 November 2022, the Applicant filed his submissions and included the reasons for his failure to comply with the Directions.
On 2 December 2022, I instructed my associate to issue a letter by registered post to the Respondent’s address and to issue the same by email. The letter advised that in the absence of any response from the Respondent by 4:00pm on Friday 16 December 2022, that the Hearing would be vacated and the matter determined without further reference to the Respondent.
The Respondent failed to comply with this further Direction. In order to ensure procedural fairness to all parties, I determined to bring the matter on for hearing on 6 January 2023 and the notice of listing was issued to the parties by email and an additional registered letter sent to the Respondent.
Submissions and Evidence
On 2 August 2021, the Applicant sent an email to the Respondent requesting an employment contract. The Respondent replied with a statement setting out the expectations of the Applicant. The Applicant submitted that he has never received a written contract from the Respondent.
The Applicant submitted that in July 2021, there had been a verbal agreement between himself and Mr J. Romer to allow the Applicant to use the equipment at the Respondent’s premises for his personal equipment, provided it was in the Applicant’s personal time, in order to improve the Applicant’s skills. The Applicant submitted that at this time, he commenced fixing clubs for the Respondent too.
The Applicant submitted that on 21 February 2022, Mr J. Romer discussed the Applicant’s ADHD diagnosis with him and questioned why the Applicant had not advised the Respondent of this prior to his engagement. The Applicant stated that he had not disclosed this as he didn’t believe it would affect his work. The Applicant produced a contemporaneous note he had taken at the alleged time of the incident.
On 28 March 2022, the Applicant submitted that the Respondent accused him of stealing company property. The Respondent allegedly requested to meet with the Applicant prior to commencing his work on 28 March 2022 at 7:30am to discuss the fact that the Respondent had concerns about the Applicant using FaceBook Marketplace to sell items. The Applicant submitted that the Respondent sought certain information such as a record of customers who had purchased such items. The Applicant submitted he had been collecting this information, advised the Respondent he had done so and further complied with the direction.
The Applicant submitted that on 22 June 2022, he reported to Mr J. Romer that Mr C Romer had been engaging in conduct that included the misappropriation of company monies. The Applicant submitted that Mr J. Romer had requested that the Applicant continue to notify Mr J. Romer when the Applicant noticed such behaviour.
On 22 June 2022, the Applicant requested a discussion with Mr J Romer concerning his salary and requested an increase. The Applicant also submitted that he would prefer to be paid as a ‘waged employee’. The Applicant submitted that Mr J. Romer agreed to a salary increase to $52,000 per annum and would also commence a commission scheme.
On 18 July 2022, the Applicant submitted that Mr J. Romer commenced a meeting with him and accused the Applicant again of stealing company property. The Applicant was stood down. This incident triggered the Applicant to file the aforementioned application pursuant to section 739 of the Act. The background of such is summarised in the Statement.[5]
The Applicant submitted that on 18 July 2022 his expected pay had not been received and as such, the Applicant made application to the Fair Work Ombudsman for this pay and as at the time of hearing had still not been paid. The Applicant submitted he has also not been paid his accrued annual leave entitlements nor his notice period.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from their employment.
Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
In all the circumstances I find that the Applicant’s employment with the Respondent was terminated on 23 August 2022. This was the date that the statement was issued by Commissioner Hunt and whilst the Respondent had advised Commissioner Hunt the Applicant was not terminated, the Respondent was not permitting the Applicant to return to work and instead alleged that the Applicant had chosen not to return to work.[6] Following the issuing of the statement, the Respondent made no attempt to return the Applicant to work or to deal further with the allegations the Respondent had made.
I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
Initial matters
Under section 396 of the FW Act, the Commission is obliged to decide the following matters 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.
Was the application made within the period required?
Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
The Statement at [20] suggested that if the Applicant would need to make an Unfair Dismissal Application, that he would be required to determine the date that the dismissal took effect. The Respondent has not provided any information to the contrary. The Applicant has nominated 29 August 2022 to be the date he considers his employment be terminated, however, has not provided any reasons to support this. It is my view that the termination took effect on 23 August 2022 when the Commissioner issued her statement and the Respondent made no attempt to return the Applicant to work or to deal with the allegations the Respondent had made.
I find that the Applicant was dismissed from his employment on 23 August 2022. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
I have set out above when a person is protected from unfair dismissal.
Minimum employment period
It was not in dispute and I find that the Respondent is a small business employer, having at least less than 15 employees, according to the Applicant.
It was not in dispute and I find that the Applicant was an employee, who commenced their employment with the Respondent in February 2021 and was dismissed on 23 August 2022, a period in excess of 12 months.
I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Modern award coverage
It was not in dispute and I find that, at the time of dismissal, the Applicant was covered by an award, being the General Retail Industry Award 2020.
I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal a case of genuine redundancy?
Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the 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.
It was not in dispute nor raised by either party that the Applicant was terminated by reason of redundancy. Even so, the Respondent failed to consult with the Applicant about the redundancy.
I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[7]
I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[8] and should not be “capricious, fanciful, spiteful or prejudiced.”[9] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[10]
Submissions
The Applicant submitted there was no valid reason and given the lack of any material being filed by the Respondent this was not contested at hearing.
I did however note that in the Respondents email to Commissioner Hunt’s chambers in the s739 proceedings (C2022/5172) a number of allegations were made by the Respondent against the Applicant. I put each of these allegations to the Applicant in the hearing and the Applicant provided a cogent, detailed, made admissions where that may have been detrimental to the Applicant and in my view, honest response to each of them. I also note that the Respondent had every opportunity to properly consider each of the allegations raised even if it was to seek a simple explanation. The Respondent offered the Applicant a meeting to do so at 10 am on 19 July 2022 and then the Respondent failed to attend that meeting.[11]
Findings
In all the circumstances, I find that there was no valid reason related to the Applicant’s capacity or conduct to perform the role he was employed to perform.
Was the Applicant notified of the valid reason?
Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[12]
As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[13] Further, the Respondent did not provide any evidence that the Applicant was notified of the valid reason instead insisting that the Applicant’s employment was ongoing.[14]
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[15] Further I repeat my earlier statement that the Respondent offered the Applicant a meeting to discuss the allegations made at 10 am on 19 July 2022 and then the Respondent failed to attend that meeting.[16]
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[17]
I turn my mind to this issue and note that whilst the Respondent offered an opportunity to respond, the Respondent never attended the meeting. I consider this to be a neutral factor.
Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”[18]
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
The Applicant submitted that his employment with the Respondent would have continued for a further 5 years given the niche industry and that he was doing well in his job.
An employee’s long and satisfactory work performance or history may be taken into consideration under s.387(h) of the FW Act and, depending on all the circumstances, may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable.[19] It was uncontested that the Applicant had been employed by the Respondent for a period just over 1 year. I do not accept that this was a long history of work performance.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[20] Each assessment must be made on its merits. That assessment is to be based upon the ordinary meaning of the words in the Act, in their statutory context. Context includes the object stated in s.381(2) of the Act that reads:
“…the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”
In arriving at an overall assessment, the statutory considerations must be applied in a practical, common-sense way to ensure that the employer and the employee are each treated fairly.[21]
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh and unjust and unreasonable because there was no valid reason for the dismissal. As such it follows that the Applicant was not notified of any such reasons (s 387(b)), nor was he afforded an opportunity to respond to any reason for the dismissal in relation to his capacity or conduct (s 387(c)) and there were no discussions relating to the dismissal (s 387(d)). For completeness, I found no weight in relation to the remaining factors s 387(e) through (g).
Conclusion
I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
Remedy
Being satisfied that the Applicant:
· made an application for an order granting a remedy under section 394;
· was a person protected from unfair dismissal; and
· was unfairly dismissed within the meaning of section 385 of the FW Act,
I may, subject to the Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
Under section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of the Applicant inappropriate?
The Applicant submitted that reinstatement is not appropriate because the relationship has broken down and the Applicant has found alternate employment.
Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”[22]
Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[23]
The Applicant submitted that payment of compensation is appropriate and gave evidence that:
· the Applicant had found alternative employment albeit only of a casual nature
· The Applicant had commenced alternative employment on the 12th of September 2022 albeit on a very limited casual basis and was therefore (notwithstanding the underpayments that are outside my jurisdiction) paid much less than he would have otherwise been paid as a result of not being able to find full time alternative employment; and
· the Applicant was not paid any notice.
In all the circumstances, I consider that an order for payment of compensation is appropriate because the Applicant was either unpaid and/or unemployed from the 23 August 2022 until 12 September 2022 as a result of the dismissal. The Applicant was also not paid notice.
Compensation – what must be taken into account in determining an amount?
Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a)the effect of the order on the viability of the Respondent’s enterprise;
(b)the length of the Applicant’s service;
(c)the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d)the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e)the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f)the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g)any other matter that the Commission considers relevant.
I consider all the circumstances of the case below.
Effect of the order on the viability of the Respondent’s enterprise
There is no evidence before the Commission to suggest otherwise and I am therefore satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise.
Length of the Applicant’s service
The Applicant’s length of service was at least 1 year and 6 months with the Applicant being unable to provide a specific date his employment commenced.
The Applicant submitted that consideration of the Applicant’s length of service would favour the determination of a greater amount of compensation because the Applicant had an expectation of ongoing work and had an exemplary record of service over this time.
I consider that the Applicant’s length of service warrants increasing the amount of compensation ordered albeit only slightly.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
As stated by a majority of the Full Court of the Federal Court, “[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.”[24]
When calculating the remuneration that the Applicant would have received or would have been likely to receive, if the Applicant had not been dismissed, the intention is to put the Applicant in the financial position he or she would have been in but for the unfair dismissal. Where the Commission forms the view that the Applicant would have stayed in his or her former job for a number of years, the remuneration may include long service leave and potential bonuses.[25]
The Applicant submitted that the Applicant’s employment would have been likely to continue for a further period of 5 years and the amount of remuneration that the Applicant would have received or would have been likely to receive during that period is $233,869.50 plus superannuation of 10.5% amounting to $258,425.80.
The evidence before the Commission, as confirmed in hearing by the Applicant, is that the Applicant earned a salary of $46,773.90 per annum plus superannuation.
I find that the period the Applicant’s employment was likely to continue but for the dismissal was approximately 10 weeks and that during that period he would have received $8,994.98 plus superannuation. I also find that the Applicant ought to have been paid 2 weeks’ notice amounting to $1,799.00 plus superannuation. This totals an amount of $10,793.98 plus superannuation.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[26] What is reasonable depends on the circumstances of the case.[27]
Whether the Applicant has acted reasonably to mitigate their loss will depend on all the circumstances. Matters that the Australian Industrial Relations Commission has taken into account in considering the efforts of a person to mitigate their loss include:
· establishment of a venture on the applicant’s own account;
· the status of the applicant as a single parent;
· the undertaking of training courses to enhance employment prospects; and
· the reasonableness of an applicant to refuse re-employment in circumstances where the employment relationship had broken down.[28]
The Applicant submitted that he had taken all appropriate steps to mitigate his loss and, in the hearing, provided evidence in respect of successfully attaining a new role which commenced albeit on a casual basis on 12 September 2022.
I am satisfied that the Applicant took reasonable steps to mitigate his loss and was successful in doing so.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
The Applicant’s evidence is that he earned 5 weeks’ pay during the relevant 8 week period, an amount of $1,683.75, from employment or other work since the dismissal. This evidence was supported by bank statements.
That evidence is not challenged by the Respondent.
I am satisfied that the amount of remuneration earned by the Applicant from employment or other work during the relevant period since the dismissal is $1,683.75.
Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation
I have found earlier that, had the Applicant not been dismissed, he would have been employed for a further 10 weeks and that it has been more than 22 weeks between the time the Applicant has been dismissed and the making of the order for compensation therefore there is no basis for deducting any payment for compensation earned by the Applicant after that time.
That evidence is not challenged by the Respondent.
Compensation – how is the amount to be calculated?
As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[29] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[30].”[31]
The approach in Sprigg is as follows:
Step 1:
I have estimated the remuneration the Applicant would have received, or would have been likely to have received if the Respondent had not terminated the employment, to be $10,793.98 on the basis of my finding that the Applicant would likely have remained in employment for a further period of 10 weeks and would have received 2 weeks payment in notice. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”[32]
Step 2:
Only monies earned since termination for the anticipated period of employment are to be deducted.[33] I have noted earlier that the applicant earned $1,683.75 for a period of 7 weeks of other employment and this amount should be deducted from the amount of $10,793.98. This leaves $9,110.23 in compensation.
Step 3:
I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment.[34]
It is only necessary to consider the impact of contingencies on prospective losses, namely losses occurring after the date of the hearing. At the time of hearing, it is possible to make a finding as to whether the Applicant’s earning capacity has been affected since the date of dismissal to that time.[35]
Given the period I have anticipated that the Applicant would remained employed, being ten weeks, extended only to the date of hearing, there is no basis to make a deduction for contingencies.
Step 4:
I have considered the impact of taxation but have elected to settle a gross amount of $9,110.23 and leave taxation for determination.
Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case”.[36]
I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act.
Compensation – is the amount to be reduced on account of misconduct?
If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
I am satisfied that no misconduct of the Applicant contributed to the employer’s decision to dismiss. Therefore, the amount of the order for compensation is not to be reduced on account of misconduct.
Compensation Cap – s 392(5) and (6)
The amount of compensation I have calculated will not make it necessary to apply the cap provided for in s.392(5) of the FW Act.
Instalments – s.393
I do not consider that there is any reason for compensation to be made by way of instalments.
Conclusion
I am satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair and that order for compensation equating $9,110.23 plus applicable superannuation, less taxation to be deducted as required by law, is appropriate having regard to all the circumstances of the case.
DEPUTY PRESIDENT
Appearances:
Mr Brenton Frankish, Applicant
Hearing details:
6 January 2022, Brisbane (by video)
[1] Frankish v Itradegolf Pty Ltd T/A Itradegolf [2022] FWC 2243 (Statement).
[2] Ibid at [19] – [20].
[3] Frankish v Itradegolf Pty Ltd T/A Itradegolf [2022] FWC 2243 – [20].
[4] Ibid.
[5] Frankish v Itradegolf Pty Ltd T/A Itradegolf [2022] FWC 2243.
[6] Email to Commissioner Hunt’s Chambers dated 28 July 2022 from Mr Justin Romer.
[7] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[8] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[9] Ibid.
[10] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[11] See Text Messages at pages 27-28 of the Digital Court Book and at Attachment 5 of the Statement of the Applicant dated 30 November 2022 admitted into evidence as A1.
[12] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[13] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[14] Statement (Ibid above n=1 [12].
[15] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[16] See Text Messages at pages 27-28 of the Digital Court Book and at Attachment 5 of the Statement of the Applicant dated 30 November 2022 admitted into evidence as A1.
[17] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[18] Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
[19] Telstra Corporation v Streeter [2008] AIRCFB 15, [27].
[20] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[21] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C, and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C, at [36]).
[22] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[23] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
[24] He v Lewin [2004] FCAFC 161, [58].
[25] Shorten v Australian Meat Holdings Pty Ltd (1996) 70 IR 360, citing Slifka v J.W. Sanders Pty Ltd (1996) 67 IR 316, 327.
[26] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[27] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[28] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [54].
[29] (1998) 88 IR 21.
[30] [2013] FWCFB 431.
[31] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
[32] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[33] Ibid.
[34] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
[35] McCulloch v Calvary Health Care Adelaide [2015] FWCFB 2267, [21], citing Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000).
[36] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
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