Brett Wingate v Causeway Holdings Pty Ltd T/A Western Forklift Services

[2017] FWC 6247

[2017] FWC 6247

The attached document replaces the document previously issued with the above code on 24 November 2017.

The previous document had a watermark embedded on some of the pages which has now been removed.

Michael McManus

Associate to Deputy President Beaumont

Dated 29 November 2017

[2017] FWC 6247

FAIR WORK COMMISSION

DECISION

Fair Work Act (Cth) 2009
s.394—Unfair dismissal

Brett Wingate
v
Causeway Holdings Pty Ltd T/A Western Forklift Services
(U2017/5028)

DEPUTY PRESIDENT BEAUMONT PERTH, 24 NOVEMBER 2017

Application for an unfair dismissal remedy – remedy – meaning of remuneration.

[1] I issued a Decision 1 in which I found that the dismissal of Mr Wingate (the Applicant) by Causeway Holdings Pty Ltd T/A Western Forklift Services, (the Respondent), was harsh and unreasonable. I was unable to come to a concluded view, based on the materials that were before me, on an appropriate remedy. I advised the parties in the Decision that they were required to file submissions to address remedy and that directions would be issued regarding a telephone hearing.

[2] Both parties were afforded an opportunity to provide further evidence as they wished in relation to the matter of remedy. A hearing on the question of suitable remedy for the Applicant was convened by me on 26 October 2017.

[3] After consideration of the entirety of the material before the Commission, I find that reinstatement is not appropriate in all the circumstances and that an order for compensation is appropriate.

BACKGROUND

[4] Both the Applicant and Respondent were required to file written submissions within seven days from the date of the Decision. On the day the written submissions were due the Respondent requested an extension of time to file submissions. The Respondent submitted it was now seeking legal advice notwithstanding the Decision being issued on 13 October 2017.

[5] The Applicant objected to the extension on the grounds that the request was made on the day written submissions were due, it would cause her client an inconvenience due to the unnecessary delay, and the Respondent was notified of the Decision on 13 October 2017, at the same time as the Applicant. Counsel for the Applicant further submitted that a legal representative of the Respondent had contacted the offices of the Applicant’s Counsel as far back as the first conciliation conference and therefore it followed that the Respondent had access to legal advice.

[6] I was satisfied that there was no plausible reason to warrant the granting of an extension and therefore declined to do so. I was satisfied that the Respondent would still have the opportunity to make oral submissions in the telephone hearing set down for 26 October 2017 and on that basis would suffer no prejudice.

Submissions of the Applicant

[7] Counsel for the Applicant submitted that reinstatement under s. 391 of the Fair Work Act 2009 (Cth) (the Act) would be an ineffective remedy due to its impracticability and undesirability. Counsel submitted that the conduct of the Respondent had demonstrated a complete breakdown in trust and confidence in the employment relationship between the two parties and therefore the Applicant sought an order for compensation.

[8] By way of remedy the Applicant sought an order for:

•  a written statement of service; and

•  compensation in the amount of 26 weeks’ pay at the Applicant’s rate of pay at the time of the dismissal, being $36.00 per hour x 35.5 hours = $33,228 (gross).

[9] Counsel submitted that the following factors set out below should be given consideration when determining compensation:

•  the full-time employment with the Respondent for a significant period from December 2009 to April 2017;

•  the conversion of the Applicant to a casual employee in November 2015 in circumstances where the Applicant had no alternative option but to accept the casual employment;

•  the Applicant continued to work as though a permanent employee while employed on a casual basis albeit he was not provided with the entitlements that arise from permanent employment;

•  the Applicant was not provided with casual loading regarding his hourly rate;

•  reasonable steps had been taken by the Applicant to mitigate his loss, namely he had registered with Centrelink, updated his resume with the assistance of Communicare, entered into a Job Plan on 11 May 2017 and was actively seeking employment by contacting twenty employers per month;

•  the Applicant is the sole income provider in his household as his wife has a disability; and

•  the Applicant was entitled to a minimum of four weeks payment in lieu of notice plus one additional week as the Applicant was over forty-five years and had completed at least two years of service.

[10] The effect on the viability of the Respondent’s enterprise was, as submitted by Counsel for the Applicant, likely to be minimal given the Respondent is a well-established company which had been trading for 30 years. Counsel for the Applicant referred the Commission to the Current & Historical Company Extract on the Australian Securities & Investments Commission website that listed the date of company registration as 23 January 1987.

Submissions for the Respondent

[11] The Respondent submitted that it was willing to reinstate the Applicant and confirmed that this had been communicated to the Applicant and Counsel for the Applicant before the hearing.

[12] According to the Respondent there was no foundation for the Applicant to decline reinstatement. The Respondent said it was incorrect to say there had been a breakdown in the trust and confidence in the employment relationship. In any event, the Respondent said, the Applicant’s contact with the Respondent’s place of business was minimal given he had previously worked at client’s premises and would continue to do so if reinstated.

[13] The Respondent referred to the Applicant having made some sixty approaches to prospective employers absent success and that the Applicant had claimed to be suffering financial hardship. The Respondent submitted that it would place the Applicant back into work immediately at the premises of its client and the Applicant could have the option of working on either a casual or permanent basis subject to passing a drug test and agreeing to work five days a week.

REMEDY

[14] The Act provides the following with respect to remedy:

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.

(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.

Note: Division 5 deals with procedural matters such as applications for remedies.

[15] Subsection 390(3) of the Act underscores the primacy of reinstatement as a remedy for an unfair dismissal.

[16] A decision of the Commission to order a person’s reinstatement is a discretionary decision, 2 exercisable if the Commission is satisfied the person was relevantly protected, the person was unfairly dismissed and the person has made a s. 394 application.3

[17] A Commission decision to order the payment of compensation to a person is also a discretionary decision, but is only exercisable if, amongst other things, the Commission is satisfied reinstatement of the person is inappropriate and the FWC considers a compensation order is appropriate in all the circumstances of the case. 4

[18] Section 392 of the Act sets out the criteria to which regard must be had in determining any amount of compensation I ordered.

[19] In determining the amount of compensation to be ordered, the Act 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.

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.

CONSIDERATION

Reinstatement

[20] I am satisfied that the Applicant was relevantly protected from unfair dismissal, was unfairly dismissed and has made an application under s. 394 of the Act.

[21] The Applicant does not seek reinstatement, submitting he has no desire to be re-employed by the Respondent. The Respondent strongly opposed an order for compensation and submitted reinstatement is appropriate in all the circumstances.

[22] In all of the circumstances, including those that lead to the dismissal and were traversed in the Decision, I am satisfied there would be little prospect of re-establishing a productive and cooperative relationship in the absence of trust. To compel the Applicant to return back to work with the Respondent would, in my view, lead to disharmony and thereafter a reduction in productivity. Given the Applicant’s evidence it cannot be said that reinstatement is appropriate in the circumstance.

[23] I am satisfied that the Applicant’s reluctance to go back to work is well founded and the refusal to accept reinstatement is reasonable. I do not consider reinstatement would be appropriate or practical.

[24] I find an order for compensation is appropriate and will consider each of the criteria in s. 392 of the Act to determine the quantum of the compensation.

Compensation

[25] The ‘Sprigg Formula’, derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket 5(Sprigg), is the well accepted approach for assessing the amount of compensation under ss. 392(2) of the Act. The Full Bench in Bowden v Ottrey Homes — Cobram and District Retirement Villages Inc (t/as Ottrey Lodge)6 (Bowden) adopted the Sprigg Formula in the context of determining compensation under the Act.

[26] In Bowden the approach was described in the following way:

[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’... 7

[27] In Haigh v Bradken Resources 8, the Full Bench reaffirmed the principles set out within Sprigg, and in particular the steps needed to be taken in assessing compensation. The first of those steps is to estimate the amount the employee would have received, or would have been likely to receive if the employment had not been terminated; the second step being to deduct moneys earned since termination; the third being to make deductions for contingencies; fourthly, to calculate any impact of taxation; and fifthly, to apply the legislative cap.9

[28] The Full Bench in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Alan Humphries 10 stated:

The identification of this starting point amount ‘necessarily involves assessments as to future events that will often be problematic’ 11. Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.

[29] The notion of ‘taking into account’ a matter (such as those described in s. 392 of the Act) connotes a genuine consideration of the relevant provision and the apportionment of the appropriate weight in the circumstances. 12

Remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

Anticipated period of employment

[30] The Applicant has submitted to the Commission that his earnings at the time of dismissal were based upon an hourly rate of $36.00 per hour and that he worked 35.5 hrs per week. This equates to a weekly salary of $1,278.00 per week.

[31] The Decision before me found that the Applicant was dismissed on 25 April 2017. On 11 April 2017 the Respondent paid the Applicant for 35.5hrs despite the Applicant having completed only 20 hours of work. This equated to an additional 15.5hrs of wages equating to $558.00. On 18 April and 25 April 2017, the Respondent paid to the Applicant what it referred to at the hearing as ‘goodwill’ 13 payments of $1,278.00 (gross) $990.00 (net pay) and $1,278.00 (gross) $992.00 (net pay) respectively. In the Decision it was considered that these payments, which equalled $2,540.00 were payment for a notice period.

[32] There is evidence before the Commission that the Applicant’s employment had been under threat before his dismissal on 25 April 2017. By October 2016 the Applicant’s absenteeism had proved problematic. Consequently, a written warning was issued dated 18 October 2016 that referred to the excessive amount of time taken off in a casual manner and the impact that had on the business. The warning set out ‘[I]f you continue along this line we shall be forced to make alternative permanent arrangements’.

[33] Evidence of the Applicant’s absenteeism was set out in the Decision at paragraphs [32] to [34]. In March 2017, the Applicant had notified the Respondent of three absences due to poor health. In January 2017, the Applicant notified the Respondent on two occasions that he would not be in on that day (Monday) but would work Tuesday through to Friday.

[34] The question of the anticipated period of employment is a particularly difficult issue in this matter. On the one hand the Applicant can point to his expectation of indefinite ongoing employment by the Respondent. On the other hand the Respondent can point to an employee who was demonstrating a pattern of absenteeism that if continued, in the absence of plausible excuse, would likely have resulted in the discontinuation of the employment.

[35] There was evidence before the Commission that the Respondent considered the Applicant was inspecting insufficient trailers during the course of a working day. While this did not form the reason, or part of the reason, for dismissal, Mr Proudlove and Mr Eaves identified that there had been a decline in the number of trailers inspected by the Applicant. Both provided evidence that neither they nor other service persons had struggled to inspect 24 trailers on the client’s site each day.

[36] There was no issue taken with the quality of the Applicant’s inspection work and the decline in the number of trailers inspected was a recent occurrence (from 8 March 2017). I am unpersuaded that this issue impacts the anticipated period of employment.

[37] Based upon the evidence before me, with particular regard to what could be referred to as chronic absenteeism over a 12 month period, as well as the assumption that any dismissal of the Applicant by the Respondent later than 25 April 2017 would be in accordance with proper procedure, that the Applicant’s employment would have continued for at least 8 weeks of the maximum compensation period. As result I set the anticipated period of employment at 8 weeks.

Notice period

[38] The Applicant received approximately 2 weeks and 2 days of notice. Counsel for the Applicant submitted that given the Applicant’s length of service and age he was entitled to 5 weeks’ notice (1 week attributed to being over 45 years of age and having served 2 years of continuous service with the Respondent).

[39] The Manufacturing and Associated Industries and Occupations Award 2010 which covered the Applicant in his employment provides at cl. 22.1 that the notice of termination is provided for in the National Employment Standards.

[40] The remuneration that the Applicant would have received or likely to have received would include payment for the period worked on notice, or the payment received in lieu of notice. 14 Notice is payable at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum notice period.15

[41] Having found in the Decision that the Applicant was a permanent employee, and having no evidence before me that the Applicant had been paid out a notice period when his employment status changed from permanent to casual, I am satisfied that the Applicant is entitled to an amount of compensation that equates to 2 weeks and 3 days’ notice having already received 2 weeks and 2 days’ notice. Before the Applicant’s dismissal his working week was set at 35.5 hours a week and therefore I have found it open to use this as a measure. 16

Paid leave – long service leave

[42] Counsel for the Applicant submitted that the Commission ought to consider paid leave entitlements denied to the Applicant. I agree with Counsel that this is a matter to which I should give genuine consideration. 17

[43] The Applicant’s employment status was changed from a permanent to a casual basis on 9 November 2015. At this time the Applicant had served just less than 6 years with the Respondent. It follows that at this time the Applicant was not entitled to long service leave under the Long Service Leave Act (WA) 1958 (LSL Act) and there was no evidence before the Commission to draw a conclusion that long service leave had been paid out.

[44] At the time of the Applicant’s dismissal he had completed at least 7 years of continuous employment but less than 10 years. When considering the anticipated employment period, but for the dismissal it would have been approximately 7 years and 7 months. While the Respondent submitted that the Applicant was a casual employee, in the Decision I found that not to be the case. Notwithstanding, under the LSL Act, casual employees are entitled to long service leave.

[45] The Applicant’s employment was terminated for a reason that was not serious misconduct. It follows that the Applicant was entitled to a proportionate amount of long service leave on the basis of 8 2/3 weeks for 10 years of such continuous employment. 18

[46] Subsection 4(2)(c) of the LSL Act provides:

(c) where the normal weekly numbers of hours have varied over the period of employment of a full-time, part-time or casual employee the normal weekly number of hours of work shall be deemed to be the average weekly number of hours worked by the employee during that period of employment (calculated by reference to such hours as are ascertainable if the hours actually worked over that period are not known);

[47] The Respondent had provided a spreadsheet of the hours worked by the Applicant for the period 7 April 2015 until 21 April 2017. The spreadsheet showed that over a period of 100 weeks the Applicant had worked on average 27.45 hours per week. In the absence of other evidence I am satisfied this is an adequate basis on which to determine the entitlement to LSL.

Paid – annual leave

[48] For the period 9 November 2015 until the end of the anticipated period of employment the employee would have accrued annual leave and had that paid out on dismissal. Further, there would have been an accrual of leave up until the end of the anticipated period of employment. 19 I did not consider the period prior to 9 November 2015 given at hearing for the Decision as it was said that the Applicant was paid out his entitlement and this was not contested.20

[49] An employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work and accumulates from year to year. To ascertain the Applicant’s accrual of ordinary hours of work the spreadsheet titled Weekly Earnings – B Wingate Apr2015 - Apr2015 1/04/2015 To 30/04/2017 was considered. There was no objection from the Applicant concerning the filing of the spreadsheet with the Commission.

The effect of the order on the viability of the employer’s enterprise

[50] The Respondent submitted to the Commission documents titled Trust Tax Return 2017 and Trust Tax Return 2016, and a Profit and Loss Statement for July 2017 through to June 2018. Copies of these documents were provided to Counsel for the Applicant who did not object to their submission.

[51] The Trust Tax Return 2017 and Trust Tax Return 2016 show that the Respondent generated a Net Australian income for 2017 that is very modest. The Profit & Loss Statement for July 2017 to June 2018 dated 30 October 2017 shows little net profit.

[52] Counsel for the Applicant submitted that the Respondent business was well established and therefore the effect of the order on the viability of the Respondent business would be minimal. However, Mr Eaves for the Respondent said the effect of the order on the viability of the Respondent would be obvious given there was no money coming in and it would have to be borrowed. Having considered the aforementioned documents I do not find it an implausible submission that the business may have to borrow money to pay out the compensation.

[53] While the Respondent business is not known to have financial difficulties it cannot be said that the Respondent is a small business employer that is prosperous. Far from it. In light of the above I am satisfied that a reduction of 33% is warranted by way of contingency.

Length of the person’s service with the employer

[54] The Applicant had been in the employment for the Respondent from 16 December 2009 until 25 April 2017, some 7 years and 4 months. This is a length of service that lends support to the making of an order for compensation.

[55] It is noted generally in relation to orders for monetary compensation that payments in lieu of notice are also to be deducted in consideration of the length of service of an applicant, (also relevant to consideration of ss. 392(2)(g). 21  However, it was found in the Decision that the Applicant was provided with a notice period but was not required to work during that time. It was not payment in lieu of notice. The amount of notice provided will therefore not be deducted from the length of service.

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[56] I am satisfied that the Applicant has taken steps to mitigate his loss. I have therefore not reduced the amount of compensation ordered in this respect.

The amount of remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[57] The Applicant’s evidence is that the after becoming unemployed on 25 April 2017 he has had no income other than his Centrelink payments.

[58] It is noted generally in relation to orders for monetary compensation, that workers’ compensation payments are deducted from such orders, but not social security payments. 22 

Any amount of income reasonably likely to be earned during the period between the making of the order and the actual compensation

[59] I am satisfied that the Applicant has been unable to secure employment although he has actively sought it by contacting 20 prospective employers a month in the period of mid-May to 6 October 2017. The jobs applied for have been varied.

[60] There is no reasonable expectation that the Applicant may obtain income of any kind between the making of the order of compensation and the actual compensation.

Misconduct and shock, distress or humiliation

[61] I do not consider there has been any misconduct which would require me to reduce the amount of compensation. I do not include any component by way of compensation for shock, distress or humiliation caused by the manner of the dismissal.

Compensatory cap

[62] The amount of compensation the Commission may order is capped. If the appropriate quantum of compensation initially assessed exceeds that cap then the Commission must reduce the amount to the amount of the cap.

[63] The Act stipulates that the compensation cap is the lesser of:

•  the amount of remuneration received by the person, or that he or she was entitled to receive (whichever is higher) in the 26 weeks before dismissal;

•  half the amount of the high income threshold immediately before dismissal. 23

[64] The high income threshold is defined in s. 333 of the Act as an amount prescribed by, or worked out in the manner prescribed by, the Regulations. Regulation 2.13 sets out the manner in which the high income threshold is to be worked out. The steps in Regulation 2.13(3), particularly Step 1 and Step 2, refer to ‘ordinary time earnings’. The Act defines ‘earnings’ such that they exclude contributions to a superannuation fund. 24

[65] Under ss. 392(5) of the Act I am obliged to determine the amount worked out under ss. 392(6) of the Act. The amount is calculated by reference to the ‘total amount of remuneration’ received by the person or to which the person was entitled (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before dismissal. ‘Remuneration’ is not defined in the Act.

[66] Both ss. 392(6) of the Act and ss. 392(2) of the Act refer to ‘remuneration’ under Part 3-2.

[67] The meaning of ‘remuneration’ has been considered in various iterations of what is now the Act and with regard to differing legislative provisions. What appears clear from the decisions is that the term ‘remuneration’ has adopted a consistent meaning whereby superannuation is included.

[68] In A. Condon v G. James Extrusion Company 25 (Condon) Watson DP considered the meaning of ‘remuneration’ in ss. 170CC(3) of the Workplace Relations Act 1996 (Cth) (WR Act).

[69] Subsection 170CC(3) of the WR Act stated:

(3) This subsection applies to an employee if:

(a) the employee's remuneration immediately before the termination of employment was not wholly or partly determined on the basis of commission or piece rates: and(b) the rate of remuneration applicable to the employee immediately before the termination exceeds a rate specified, or worked out in a manner specified, in the regulations (the specified rate).

[70] In Condon, had the employee not been engaged under an award and received remuneration in excess of $64,000 per annum (the specified rate) before his dismissal, he would be excluded from protection from unlawful termination by virtue of Regulation 30BB, a regulation arising out of s. 170CC of the WR Act.

[71] Citing various cases 26 Watson DP stated:

The term remuneration was the subject of consideration by the Industrial Relations Court in the context of the s. 170EE(3) cap of compensation which could be awarded under the Industrial Relations Act 1988. S. 170EE(3) referred to "remuneration". The 1988 Act also contained reference to "relevant wages" in relation to the exclusion of non award employees relevant wages exceeded a defined amount in s. 170CD, a provision otherwise broadly comparable to the current exclusion in s. 170CC (3) and (4) of the Workplace Relations Act.

The Workplace Relations Act 1996 no longer utilises the term "relevant wages" in respect to the exclusion of relevant non-award employees. The provisions in both s. 170C (cap on compensation) and s. 170CC (exclusion by regulation) employ the term "remuneration".

There appears to be a difference intended by the Parliament between the terms. In this context, it can be noted that the Industrial Relations Act 1988 employed the term "remuneration" in setting the cap on compensation which could be awarded (s. 170EE(3) of that Act. The term "remuneration" is retained for that purpose within s. 170CH(8))….

[72] Watson DP in Condon distinguished between the term ‘relevant wages’ that had been used in respect to the exclusion of relevant non-award employees and that of its replacement term ‘remuneration’. Watson DP continued:

In my view the observations of Wilcox CJ in Ardino cited above do not have application to the term "remuneration". Remuneration is a broader concept, with superannuation in my view forming a part of that broader concept, whether by way of statutory obligations or contributions beyond those required by legislation.

The inclusion of superannuation within remuneration in the context of the broader meaning attached to the term in May, is reflected in a decision of Marshall J in Rigby v Technisearch (unreported decision of Marshall J, Industrial Relations Court of Australia; 156/96) In Rigby, Marshall J said:

The applicant earned $59,000 per annum and $5,000 per annum was paid into a superannuation fund in respect of him by the respondent. In May, the Chief Justice held (at 11-12) that non pecuniary benefits can be included as ”remuneration” under s. 170EE(3). I agree with the view of the Chief Justice therein contained, at least in the context of superannuation which is the relevant matter for present consideration. Superannuation contributions by employers are in the nature of payments in respect of work performed by employees. The Australian Conciliation and Arbitration Commission, in its June 1986 National Wage Case, adopted a national wage principle dealing with superannuation. See (1986) 14 IR 187, 212-219. The principle permitted awards to be varied to provide a requirement for employer contributions on behalf of employees to superannuation funds which (did) not involve an equivalent wage increase in excess of 3% of ordinary time earnings of employees' (see at 219). The claim for a superannuation payment was made by the Australian Council of Trade Unions as a claim in lieu of a claim for a 3% wage increase (see at 213).

Superannuation is unquestionably, in my view, when paid into a fund by an employer on behalf of an employee, part of the remuneration of the employee. Award superannuation has grown since 1986 and in addition, the Superannuation Guarantee Scheme underpinned by the Superannuation Guarantee Charge Act 1992 and the Superannuation Guarantee (Administration) Act 1992 has extended compulsory superannuation coverage to employees not employed under award conditions.

I agree with the analysis of Wilcox CJ in May at 11-12 where his Honour said:

“That Parliament intended ‘remuneration’ in s. 170EE(3) to cover more than salary and wages is suggested by the Act itself. The amending legislation that inserted the present s. 170EE (Act no. 97 of 1994) also inserted s. 170CD. That section excludes from Subdivisions B, C, D, E and F of Division 3 employees whose ‘relevant wages’ exceed particular amounts. Plainly, the word ‘remuneration’ was chosen, for s. 170EE(3), in order to denote a concept wider than wages. Non-monetary benefits are not wages: see Ardino v Count Financial Group Ply Limited (1994) IRCR 221 at 228-229. But they fall within the concept of remuneration.”

Similarly, Beazley J included superannuation within remuneration in Izdes v LG Binhen CO Pty Ltd (t/as Alba Industries) Izdes) (unreported decision of Beazley J, Industrial Relations Court of Australia, 483/95).

In my view the superannuation contributions of $3450 forms part of the remuneration of the applicant for the purpose of s. 170CC(3) and (4).

[73] Section 170EE of the WR Act relevantly set out:

Section 170EE.  Remedies the Court may grant

(1)  In respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, the Court may, if the Court considers it appropriate in all the circumstances of the case, make the following orders:

(a) an order requiring the employer to reinstate the employee by:

(i) reappointing the employee to the position in which the employee was employed immediately before the termination; or

(ii) appointing the employee to another position on terms and conditions no less favourable than those on which the employee was employed immediately before the termination; and

(b) if the Court makes an order under paragraph (a):

(i) any order that it thinks necessary to maintain the continuity of the employee's employment; and

(ii) an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination.

(2)  If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may, if the Court considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate.

(3) In working out the amount of the compensation for the purposes of subsection (2), the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment, but the amount of compensation:

(a) must not exceed, in respect of any employee, the amount of the remuneration that would have been received by the employee in respect of the period of 6 months that immediately followed the day on which the termination took effect if the employer had not terminated the employment and the employee had continued to receive remuneration in respect of the employment at the rate at which he or she received remuneration immediately before the termination took effect; and

(b) must not exceed, in respect of an employee who is not employed under award conditions, the applicable amount on the day on which the termination took effect.

[74] In Rofin Australia Pty Ltd v Newton 27 the Full Bench of the Australian Industrial Relations Commission considered that the employee’s rate of remuneration included both annual salary and superannuation, the Full Bench stated:

Prior to the amendments made to the Act by the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act), the "salary cap" for the purposes of excluding non-award employees from the operation of the termination of employment provisions was expressed in terms of "relevant wages". The term now used is "remuneration", a term which denotes a broader concept than salary or wages. "Remuneration", in our view, is properly defined as the reward payable by an employer to an employee for the work done by that employee in the course of his or her employment with that employer. It is a term that is confined neither to cash payments nor, necessarily, to payments actually made to the employee. It would include non-pecuniary benefits and payments made on behalf of and at the direction of the employee to another person out of moneys otherwise due to that employee as salary or wages.

[75] Ross VP as he was then in Shorten and Others v Australian Meat Industry Holdings Pty Ltd 28 considered the meaning of ‘remuneration’ with regard to s. 170EE of the WR Act referring to the cases of Ardino v Count Financial Group Pty Ltd29, May v Lilyvale Hotel Pty Ltd30and Rigby v Technisearch Ltd31. Ross VP stated:

Plainly, the word ‘remuneration’ was chosen, for s 170EE(3), in order to denote a concept wider than wages. Non-monetary benefits are not wages: But they fall within the concept of remuneration…..

Accordingly the calculation of lost remuneration includes superannuation contributions and the value of non-pecuniary benefits such as the provision of a car, or free board and/or meals…

[76] The Full Bench of Fair Work Australia in the decision of Tabro Meat Pty Ltd V Kevin Heffernan 32 has affirmed that superannuation forms part of ‘remuneration’ as that term is understood in ss. 392(2)(c) of the Act.

[77] Further, in the absence of authority to suggest otherwise, the meaning afforded to the term ‘remuneration’ as referred to in ss. 392(6) of the Act should, in my view, be the same as that adopted in ss. 392(2) of the Act.

[78] While ss. 392(2) of the Act refers to ‘remuneration that the person would have received…’ 33 and ‘any remuneration earned’34 I am satisfied that use of the word ‘received’ and ‘earned’ provides context rather than changing the meaning of ‘remuneration’. In one instance the reader is dealing with the hypothetical and in the next must contemplate what was actually earned.

[79] For the purpose of ss. 392(5) of the Act, I am satisfied the amount is $33,585.84. I have considered that under the Applicant’s employment contract he was entitled to superannuation contributions at 9.5%.

Any other matter that the Commission considers relevant

[80] Counsel for the Applicant drew attention to the Applicant being the sole provider for his household and that his wife was on a disability pension. I am not satisfied that this necessarily results in the loss of income.

CONCLUSION AND ORDERS

[81] After consideration of the foregoing issues, I find that the Applicant was dismissed and that it was unfair within the meaning of the Act.

[82] I find that reinstatement is not an appropriate remedy in this case and that compensation is appropriate. The calculation for compensation is set out in the following table.

Compensation	Calculation	Gross	Total Gross Amount
Anticipated employment period	8 weeks x 35.5hrs x $36 = $10,224.00 Superannuation at 9.5% = $971.00	$10,224.00	$11,195.00 (inclusive superannuation)
Notice period	5 weeks x 35.5hrs x $36 = $6390.00 Superannuation at 9.5% =$607.00	$6,997.00	$3,607.00 (inclusive superannuation)
Subtract 2 days’ notice [7.5hrs x 2 days x $36] = $540.00 Superannuation at 9.5% = $51.00	-$591.00
Subtract 2 weeks’ notice [2 weeks x 35.5hrs x $36] = $2556.00 Superannuation at 9.5% = $243.00	-$2,799.00
LSL	8.66 wks = 10 yrs x wks = 7.58 yrs = 6.56 wks 6.56 weeks x 27.45 hrs = 180.0 hours 180.0 hrs x $36.00 =	$6,480.00	$6,480.00
Annual leave	Worked 17 months [9 November 2015 – 25 April 2017] = 2133hrs Hours worked a month on average = 125.47 (31.6 hrs a week) Over 17 months entitled to 5.66 weeks of annual leave equates to 179 hrs of annual leave should have been accrued 179 hrs annual leave x $36.00 Annual leave for the period of 8 weeks (anticipated employment period 25 April 2017 until 25 June 2017) 0.61 weeks = 3 days x 7.5 x $36.00	$6444.00 $810.00	$7,254.00
Deduct monies for misconduct	$0.00	$0.00	$0.00
Deduct monies earned since termination	$0.00	$0.00	$0.00
Deduction for contingencies	33% reduction for contingencies $28,536.00 x 33%	-$9417.00
Calculate any impact of taxation	To be taxed according to law
Apply the compensation cap	Last six months amount of remuneration received by the Respondent $30,672.00 + (9.5% superannuation 2913.84) = $33,585.84 Half the amount of the high income threshold = $71,000	Cap applied
TOTAL	$19,119.00

[83] For the reasons I have given earlier, and on the basis of the calculations there completed, I order that the Respondent pay to the Applicant an amount of $19,119.00 (gross). In determining the amount for the purpose of the order I have taken into account all of the circumstances of the case including the criteria set out in ss. 392(2) of the Act.

[84] The total amount does not exceed the compensation cap applying at the time of dismissal.

[85] The amount ordered to be paid must be subject to ordinary taxation.

[86] I take into account that the Respondent is unlikely to have budgeted for an order of compensation in these circumstances. It is therefore appropriate that the compensation is paid in four fortnightly instalments of $4779.75 (gross) the first of which will be made within 14 days from the date of the accompanying order 35 (as issued simultaneously with this decision).

DEPUTY PRESIDENT

Appearances:

M. Nasser ofRochforts Workplace Solutions for the Applicant.

N. Eaves for the Respondent.

Hearing details:

Perth:

26 October 2017

Final written submissions:

Applicant’s Submissions dated 30 October 2017

Respondent’s Submissions dated 3 November 2017

 1   [2017] FWC 4839

 2   Ellawala v Australian Postal Corporation, Print S5109 [24].

 3   Gloria Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey [2013] FWCFB 431 [15].

 4   Ibid[16].

 5 Print R0235, (1998) 88 IR 21.

 6   [2013] FWCFB 431.

 7   See also Ellawala v Australian Postal Corporation Print S5109 [34].

 8   [2014] FWCFB 236.

 9 Ibid [10].

 10   [2016] FWCFB 7206 [17].

 11   Smith, Arthur and Kimball, Brett v Moore Paragon Australia Ltd PR942856 [32].

 12   Ms Diane Lewis v Glendale RV Syndication Pty Ltd T/A Glendale Care Bundaberg [2014] FWC 1086.

 13   Transcript PN292-302.

 14   Mr Anthony Callahan v Graphic Impressions[2014] FWC 437 [106].

 15 Subsection 117(2)(a) of the Act.

 16   Document titled Weekly Earnings – B Wingate Apr2015 – Apr2015 1/04/2015 To 30/04/2017.

 17   Mr Anthony Callahan v Graphic Impressions[2014] FWC 437 [118].

 18 Subsection 8(3) Long Service Leave Act (WA) 1954.

 19   Mr Anthony Callahan v Graphic Impressions[2014] FWC 437 [118].

 20   Transcript PN417.

 21   Double N Equipment Hire Pty Ltd t/a A1 Distributions v Alan Humphries[2016] FWCFB 7206 [34].

 22   Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 29.

 23   Subsection 392(5) and (6).

 24 Subsection 332(2)(c) and (4) of the Act; Craig Ablett v Gemco Rail Pty Ltd [2010] FWA 8124.

 25   Print N9963.

 26   Ardino v Count Financial Group Pty Ltd unreported decision of Wilcox CJ Industrial Relations Court of Australia 139/94; May and Daw v AWU-FIME Amalgamated Union, unreported decision of Tomlinson JR Industrial Relations Court of Australia 67/95; Brown v Listaglen Pty Ltd, (unreported decision of Murphy JR, Industrial Relations Court of Australia 157/94.

 27   Print P6855.

 28 (1996) 70 IR 360 at 376.

 29 (1994) 57 IR 89.

 30 (1995) 68 IR 112.

 31 (1996) 67 IR 68.

 32   [2011] FWAFB 1080 [21]

 33 ss. 392(2)(c) of the Act.

 34 ss. 392(2)(e) of the Act.

 35  

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