Bridie Schroeter v Arnhem Early Learning Centre Pty Ltd T/A Arnhem Early Learning Centre

[2019] FWC 2346

[2019] FWC 2346

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bridie Schroeter
v
Arnhem Early Learning Centre Pty Ltd T/A Arnhem Early Learning Centre
(U2018/9264)

COMMISSIONER BISSETT MELBOURNE, 11 APRIL 2019

Application for an unfair dismissal remedy - Compensation.

[1] On 27 February 2019 I issued a Decision 1 in which I found that Ms Bridie Schroeter had been unfairly dismissed by Arnhem Early Learning Centre Pty Ltd T/A Arnhem Early Learning Centre (AELC). Ms Schroeter had commenced employment with AELC in late 2012 and her employment was terminated on 7 August 2018.

[2] In that Decision I determined that I would deal with remedy separately. I found that reinstatement was not appropriate so determined would consider compensation. I did determine however that, on the evidence before me, I was satisfied that Ms Schroeter would have remained in employment until 24 December 2018.

[3] I did not have sufficient information to enable me to determine what the level of compensation should be. I therefore sought further submissions from the parties on this matter. Both Ms Schroeter and AELC provided further material on the question of compensation. Both parties indicated that they were content for the Fair Work Commission (Commission) to determine compensation on the basis of the material they filed and they did not wish to be further heard.

[4] Section 392 of the Fair Work Act 2009 (FW Act) sets out those matters relevant to the determination of an amount of compensation.

[5] Section 392 of the FW states as follows:

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.

[6] The Sprigg formula 2 is used in determining compensation in conjunction with other matters set out in s.392 of the FW Act. It is to be remembered that the awarding of an amount of compensation is not intended to be punitive. This sits with the requirement that an amount not be ordered for hurt, humiliation or distress (s.392(4)).

[7] Ms Schroeter was dismissed from her employment on 7 August 2018. She worked a 38 hour week. As stated above I consider Ms Schroeter would have remained employed until 24 December 2018. This is a period of 19.86 weeks. I reached this conclusion on the basis of statements and evidence of Ms Schroeter that, prior to her dismissal, she had told AELC she would be finishing her employment at Christmas or the end of the year. Ms Schroeter was, at the time her employment was terminated, earning $34.65 per hour 3 ($1,316.70 per week for a 38 hour week).

[8] Had Ms Schroeter continued to remain in employment until 24 December 2018 she would have earned a further $26,149.66.

[9] Ms Schroeter’s lost remuneration is therefore $26,149.66.

[10] At the time of her dismissal Ms Schroeter had injured her knee at work. She made a claim for workers’ compensation which was accepted by the insurer. As a result of this Ms Schroeter was paid an amount of $22,455.00 for the period 24 August 2018 to 22 December 2018. 4 Ms Schroeter continued to receive workers’ compensation payments beyond this date but I do not need to consider those amounts as I am satisfied she would no longer have been employed by AELC.

[11] Workers’ compensation payments are generally considered to be remuneration and, as such, should be deducted from Ms Schroeter’s lost remuneration.

[12] Ms Schroeter also received four weeks’ pay in lieu of notice ($5,266.80). This amount should also be deducted from her lost remuneration.

[13] On this basis Ms Schroeter has not lost remuneration as a result of her dismissal ($26,149.88 - $22,455.00 - $5,266.80 = -$1,571.92).

[14] In these circumstances where Ms Schroeter has not, in fact, lost any remuneration, it is not necessary for me to consider any other factors in s.392 of the FW Act as they would operate, generally, to reduce her lost remuneration or the amount of compensation ordered.

[15] Both Ms Schroeter and AELC made submissions with respect to amounts that might be due to AELC in relation to rental costs and the value of subsidised child care provided to Ms Schroeter. The submissions did not go to the value that might be necessary to attribute to these for the purpose of determining lost remuneration but rather whether a bond has been returned or the state in which the rental housing was left when Ms Schroeter vacated it.

[16] These are not matters that I intend to engage – particularly given the dearth of information provided and assertions (without evidence) as to what is or is not owed. In any event I am not convinced, on the basis of the material before me, that issues raised relate to remuneration.

Conclusion

[17] Ms Schroeter has not lost any income as a result of her dismissal. For the reason given I will not make an award of compensation.

COMMISSIONER

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 1   [2019] FWC 989.

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

 3   AELC submissions, attachment B.

 4   AELC submissions, attachment C.