Cansu Pilic v Seltec Pty Ltd

[2018] FWC 477

[2018] FWC 477

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cansu Pilic
v
Seltec Pty Ltd
(U2017/8584)

COMMISSIONER GREGORY MELBOURNE, 25 JANUARY 2018

Application for an unfair dismissal remedy – jurisdictional objection – whether Applicant dismissed with meaning of the Act – whether Applicant resigned – held Applicant dismissed from employment – dismissal harsh unjust and unreasonable – compensation ordered.

Introduction

[1] Ms Cansu Pilic was first employed by Seltec Pty Ltd (“Seltec”) on 17 January 2017 and worked as an Account Manager. The business operates a small IT distribution company and employs around 15 people.

[2] However, Ms Pilic’s employment came to an end on 7 August 2017 following a meeting arranged as part of a half yearly performance review. Her Manager, Mr Pratik Kumar, and his brother, Mr Ritesh Kumar, who is a Channel Development Manager with Alogic Pty Ltd (“Alogic”), a related vendor business, also attended the meeting. Alogic supplies hardware and other services to Seltec, as well as sharing warehouse space. Ms Pilic claims she was dismissed from her employment during the course of this meeting. However, Seltec claims her employment came to an end because she resigned.

[3] Ms Pilic appeared on her own behalf. Mr Pratik Kumar appeared on behalf of Seltec.

The Issue to be Determined

[4] Section 385 of the Fair Work Act 2009 (Cth) (“the Act”) relevantly provides:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable” 1

[5] Section 386, “Meaning of dismissed” continues to provide:

“(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative.” 2

[6] Seltec accordingly submits that Ms Pilic has not been dismissed in terms of the definition contained in s.386(1)(a), but instead ended the employment relationship of her own volition by resigning. Therefore, she cannot have been unfairly dismissed. However, Ms Pilic denies she resigned and claims instead that her employment was terminated in the meeting on 7 August 2017.

[7] Therefore, the first issue to be determined is whether Ms Pilic has been “dismissed” as required by s.385(a) of the Act. If it is found that she was dismissed, then the Commission must determine whether her dismissal was “harsh, unjust or unreasonable,” 3 taking into account the matters contained in s.387 of the Act. However, if it is found that she has not been “dismissed” then her application must also be dismissed.

The Evidence and Submissions

The Evidence of Ms Cansu Pilic

[8] Ms Pilic was first employed by Seltec to work as an Account Manager in January 2017. She made clear at that point that she was getting married in October and would need to take around four weeks’ leave at that time. She provided a copy of the leave application, dated 10 July 2017, that she subsequently submitted to Seltec confirming this leave request. She was also told at the time of her engagement that she would be provided with ongoing training, and be given appropriate KPIs related to her role.

[9] Ms Pilic reported directly to Mr Pratik Kumar. However, she said his brother, Mr Ritesh Kumar who is employed by a related company, Alogic, also appeared to have “everything and everything to do with the workplace.” 4 She was subsequently accompanied to various customer meetings during the first few months of her employment by one or other of the two men to introduce her to the major clients of the business, and to help her understand their needs and requirements.

[10] However, after working at Seltec for a period of time, Ms Pilic said she was “shocked at the place that I was working at.” 5 She said there was significant staff turnover and she was often required to train new staff at short notice. In addition, the employees were generally frustrated at the way in which the business was operated and managed, and there was a lack of clear direction.

[11] Then, in early August Ms Pilic was asked by Mr Pratik Kumar to attend what was described as a half yearly performance review meeting to be held on 7 August. She was not provided with an agenda in advance of the meeting, and did not think it necessary to attend with a support person.

[12] When she arrived Mr Ritesh Kumar was also present. He proceeded to ask a series of questions about the various accounts she was responsible for, and reviewed client information contained on her laptop. She said his questioning became increasingly aggressive and he began to raise his voice in an angry manner. She asked him to stop raising his voice but he continued to do so, and then began to interrupt her responses.

[13] Ms Pilic said she became increasingly anxious because of Mr Kumar’s attitude and behaviour, and again asked him to stop raising his voice. However, he then lent over the boardroom table and slammed her laptop shut, saying words to the effect of, “That’s it, your employment is terminated, get out,” 6 and “you are done here. You no longer work for this company. Pack your things and leave now.”7

[14] Ms Pilic said she turned to Mr Pratik Kumar for support, but he had his head in his hands and didn’t respond. She told him that he was aware of his brother’s aggressive behaviour, and the way in which he treated the employees, and he should not allow him to behave in that way.

[15] Ms Pilic said she then walked out of the boardroom, packed her personal belongings, and prepared to leave the building. Before leaving she walked over to Mr Pratik Kumar’s desk and told him she had had three outstanding expense claims that needed to be finalised. She also told him she was entitled to two weeks’ pay in lieu of notice, given it appeared she was not required to work out a period of notice. She also said how disappointed she was in his lack of support, given he was her immediate Manager. She also did not believe it was appropriate for an external consultant to be involved in the termination of a person employed by Seltec. She then left the workplace.

[16] Ms Pilic acknowledged in cross-examination that Mr Pratik Kumar had not been critical of her in the time she worked for Seltec. She also acknowledged that only two people, apart from Mr Caspersz, had actually left their employment at Seltec during the time she was employed.

[17] Ms Pilic said she did not receive any feedback about her performance in the seven months she was employed, and had not been criticised or warned about her performance and attitude in that time. However, she had been given additional tasks to carry out, and had also been asked to assist in training new employees, despite having only been provided with limited training herself. She was also not provided with a final version of her KPIs, despite repeated requests.

[18] Ms Pilic also provided a copy of a medical certificate indicating she attended an examination with her G.P. on 7 August 2017. It stated she “attended today because of stress-related symptoms as a result of being unfairly terminated at the workplace on the 7th August 2017.” 8

[19] Ms Pilic also said she never used the words “To hell with this job” 9 as alleged, and Seltec’s submissions and evidence about this were in conflict. However, she did acknowledge that she was upset and emotional as she left the boardroom and began to collect her personal belongings.

[20] Ms Pilic then sent the following email to Mr Pratik Kumar on the following day, being 8 August:

“After yesterdays termination of my employment from the vendor Alogic (Ritesh Kumar) I will need this in writing and I will also need you to fill out the separation certificate for Centerlink purposes which you can access online, I need this to be done by noon today so I can apply for payment. As mentioned yesterday I also require payment of my 3 separate expense claims that were submitted over the past 6 weeks combined along with any annual leave and as per my contract my two weeks of payment after being terminated which are not required to work out.” 10

[21] However, after receiving this email Seltec did not make any attempt to correct the record by indicating that she had not been terminated.

Mr Brandon Caspersz

[22] Mr Caspersz was employed by Seltec in January 2017 and worked with the business until he resigned in June. He said he was initially told he would be earning a base salary plus commission, however, when finally provided with his earnings targets they were effectively unachievable meaning any entitlement to commission payments was in reality unattainable.

[23] He said he often felt awkward and ill at ease at work in the time he was employed by Seltec, and believed other employees felt the same way. He said Mr Ritesh Kumar often acted aggressively toward the employees and he referred to various instances of him screaming and verbally abusing employees. He said Mr Pratik Kumar did little or nothing to intervene or prevent this from occurring. Ms Pilic was involved in one of these incidents in February during the course of a meeting in the boardroom. On that occasion he observed Ms Pilic leave the meeting in tears. However, he acknowledged in cross-examination that Mr Ritesh Kumar had not acted in this way toward him during the time he was employed by Seltec.

Mr Pratik Kumar

[24] Ms Pilic commenced with Seltec in the role of Account Manager on 17 January 2017. During the time she was employed there were regular meetings with her to review her performance, and the agenda for those meetings gradually evolved from introducing her to customers and product training to a review of customer sales figures. Ms Pilic was also accompanied to most customer meetings during the first five months of her employment to ensure she was comfortable and confident in meeting with customers.

[25] Mr Kumar said the purpose of the meeting on 7 August was to review the customer accounts Ms Pilic was responsible for. It also involved a broader six-month performance review. It began with a review of the customer accounts allocated to her. During the course of the discussion Ms Pilic was asked about her plans to meet with her “tier 1” 11 customers, and what plans she had for them in the immediate future. He said she indicated in response, on at least two occasions, that nothing had been done in regard to those customers, and she had no current plans in place for them.

[26] Mr Ritesh Kumar then said that this was unacceptable and she needed to try and do better. Ms Pilic then said she would not be spoken to in that way. However, Mr Kumar responded by indicating that she was working in a professional organisation, and it was expected that employees act accordingly and, as part of this, be prepared to provide appropriate responses to legitimate questions. He also said that if this was not something that Ms Pilic was prepared to do then it appeared her position as an Account Manager might not be the right role for her.

[27] Mr Kumar said Ms Pilic responded by indicating that “this was not for her” and proceeded to leave the boardroom. He followed her out and noticed she was packing her personal belongings and preparing to leave. She then approached his desk and said she wanted to be paid for two weeks’ pay in lieu of notice, as per her contract, as she assumed Mr Ritesh Kumar did not want her to work out her period of notice. She then slammed the door of the office and left saying, “go to hell with this company and this job.” 12

[28] He said Ms Pilic subsequently requested that he provide her with a separation letter, however, he told her that he was obtaining legal advice, and was concerned about providing Centrelink with information that might not be correct.

Mr Ritesh Kumar

[29] Mr Ritesh Kumar also provided a witness statement, however, it appears to be an abridged version of the statement provided by Mr Pratik Kumar and, as such, does not contain any additional relevant evidence. However, he denied in response to a question from the Commission that he had slammed Ms Pilic’s laptop shut during the course of the meeting on 7 August. He also denied he told her to “Get out,” 13 or that “She no longer worked for the company.”14 He also said he did not have any issues with Ms Pilic’s work performance and was surprised when she decided to resign.

Seltec

[30] Seltec indicates in its submissions that it is a small IT distribution company. Its day-to-day operations are managed by Mr Pratik Kumar, who is assisted by an external consultant, Mr Ritesh Kumar. He is employed by Alogic, a business that supplies hardware and other services to Seltec. Both businesses also share some common warehouse accommodation.

[31] The business conducts regular monthly progress or “check in” 15 meetings with each of its Account Managers, including Ms Pilic. The final meeting with her on 7 August also dealt with her six-month performance review.

[32] Seltec submits that Ms Pilic was not terminated at its initiative, and her resignation was instead clear and unambiguous. She was not forced to resign, and it did not engage in action that was intended to bring the employment relationship to an end, or was likely to have that probable result.

[33] It also submits that it did not have the opportunity to respond to the email Ms Pilic sent on 8 August, prior to it becoming aware of the unfair dismissal application she filed on the same day. However, after receiving the application it decided not to respond to the email in case it prejudiced its interests in regard to the unfair dismissal application. It decided instead to seek legal advice before taking any further action. As a consequence it submits its failure to clarify with Ms Pilic that she had not been terminated, following receipt of her email, should not be viewed as an admission that her employment had been terminated at its initiative.

[34] It submits, in conclusion, that Ms Pilic was not “dismissed” in accordance with s.386 of the Act, but instead resigned of her own accord. It also denies any allegations of bullying, harassment, or any other inappropriate conduct in regard to Ms Pilic.

[35] It continues to submit that if the Commission finds Ms Pilic was unfairly dismissed then it is not appropriate for compensation to be awarded. In this context it refers to her conduct and actions in the meeting on 7 August, her subsequent correspondence, and the false statements contained in her unfair dismissal application.

[36] It also notes that in the period of just under seven months that Ms Pilic was employed by Seltec she was absent from work on annual leave for 57 hours, and absent on sick leave for a further period of 41 hours. It also points to the effect any order of compensation would have on a relatively small business with limited financial resources, as well as Ms Pilic’s apparent failure to mitigate her loss. It also notes she was planning to take 20 days of unpaid leave from 25 October until 22 November 2017 in conjunction with her wedding.

Consideration

[37] It is noted at the outset that both parties provided only brief submissions and limited evidence in the proceedings. Nevertheless, the Commission is now required to determine the matter based on the submissions and evidence now before it.

[38] The first issue to be determined is whether Ms Pilic was dismissed from her employment by Seltec, or whether she resigned. The resolution of this issue turns on what occurred in the discussions in the meeting on 7 August. Ms Pilic obviously attended that meeting. Her Manager, Mr Pratik Kumar was also present, along with his brother, Mr Ritesh Kumar, a consultant to the business. Ms Pilic provided evidence about what she states occurred during the course of those discussions. Mr Pratik Kumar and his brother both provided evidence detailing a different account of what occurred. However, as indicated Mr Ritesh Kumar’s witness statement simply appears to be an abridged version of the statement provided by his brother, rather than one prepared separately based on his own recollection of what occurred. In addition, there is no independent account of what occurred. The evidence of both parties has been detailed previously and is not restated now. In summary, Ms Pilic states that the behaviour of Mr Ritesh Kumar became increasingly aggressive to the point where he eventually told her to get out, and that she no longer worked for the business. Seltec submits, in response, that Ms Pilic was reluctant to engage or answer legitimate questions during the course of the meeting, and then said that this was not for her, at which point she left the boardroom, packed up her personal belongings, and left the premises.

[39] The only other evidence was provided by Mr Brandon Caspersz. He was employed by Seltec at around the same time as Ms Pilic but resigned in June last year. His evidence does not assist in determining what actually occurred in the meeting on 7 August. However, he did provide evidence about his observations on occasions of Mr Ritesh Kumar’s verbally aggressive behaviour toward the employees at Seltec, and on at least one occasion this behaviour was directed at Ms Pilic. His evidence about these matters was not challenged in cross-examination.

[40] In the absence of any independent evidence about what occurred in the meeting on 7 August it is appropriate to consider what other evidence might be relevant in determining whose evidence is to be preferred. Firstly, Ms Pilic’s evidence makes clear she was not entirely happy at work. She was unhappy about the lack of direction given to staff, including herself. She had not been provided with specific KPI’s, despite various requests and commitments in return that they would be provided. She was also required to train other employees, despite having been provided with only limited training herself. However, she did acknowledge in this context that she had been accompanied to meetings with clients of the business by Mr Kumar, or his brother, as part of her familiarisation with those clients and customers.

[41] The frustrations Ms Pilic was experiencing at work could have caused her to react in the manner described by Mr Pratik Kumar when the issues about client servicing, and her future plans for those clients, were raised in the meeting on 7 August. This, in turn, might have prompted the reaction detailed in Mr Kumar’s evidence, and culminated in her effectively resigning from her employment at the conclusion of the meeting.

[42] However, the evidence of both Ms Pilic and Mr Caspersz makes reference to the aggressive behaviour of Mr Ritesh Kumar toward other employees. While he is not employed by Seltec, and is a consultant to the business, the evidence indicates he has a significant role in the management of the organisation. Based on the evidence of Ms Pilic and Mr Caspersz I am satisfied that it is possible Mr Kumar could have acted in the way Ms Pilic describes.

[43] Ms Pilic’s behaviour following the meeting on 7 August also appears, in large part, to be consistent with someone whose employment has been terminated. She, firstly, provided a copy of a medical certificate, which indicated she attended an examination with her G.P. on that day. It states she “attended today because of stress-related symptoms as a result of being unfairly terminated at the workplace on the 7^th August 2017.” 16 Obviously the medical practitioner who examined Ms Pilic had no actual knowledge of whether she had been “unfairly terminated” from her employment, or whether she had been terminated at all, and was only recounting what he had been told. However, her actions in this context can be considered to be consistent with someone whose employment has been terminated unexpectedly.

[44] Ms Pilic then sent the email to Mr Pratik Kumar on 8 August. Its content has been set out at an earlier point in this decision and is not restated in full now. However, it makes reference to “…yesterday’s termination of my employment…” 17 It then requests that Seltec complete a separation certificate so Ms Pilic can access Centrelink payments. It also makes reference to payment of some outstanding expense claims and the pay out of any accrued leave entitlements. It finally makes reference to an amount of “two weeks of payment,”18 as Ms Pilic was not required to work out a notice period. Sending this email is again consistent with the actions of someone who believes their employment has been terminated.

[45] It is also noted that Seltec subsequently did nothing to refute the suggestion that Ms Pilic’s employment had been terminated. It also forwarded the payment equivalent to two weeks’ pay in lieu of notice, which is again consistent with the termination of her employment at its initiative. Seltec submits that it made the payment based on the advice of its legal representatives. It also did not consider it appropriate to respond to Ms Pilic’s email following receipt of her unfair dismissal application. Nevertheless, its actions can be considered to be consistent with Ms Pilic’s employment having been terminated.

[46] Ms Pilic then proceeded to immediately lodge her unfair dismissal application on the following day, with the Commission’s records indicating it was received at 12.18 pm on 8 August 2017. While this again is not conclusive of anything, her actions in immediately proceeding to make application are again consistent with someone who believes their employment has been terminated.

[47] Ms Pilic also refers in her application, and in her evidence, to her forthcoming wedding and the financial consequences associated with no longer being employed. She states, for example, that she informed Seltec at the time she was first employed that she would require time off later in the year because she was getting married. She also provided a copy of her subsequent leave request, seeking leave in the period from 24 October until 23 November. It is dated 10 July 2017.

[48] I am satisfied, in response, that these circumstances again mitigate against a conclusion that Ms Pilic resigned from her employment during the course of the discussions in the meeting on 7 August. It appears that she was relying, in large part, on the income from her employment to fund the cost of her wedding. There is also no suggestion she had another job to go to at the time she left Seltec. She had also lodged a leave application some three weeks prior to her last day at work.

[49] As indicated, the conflicting evidence and the absence of any independent account of what occurred, make it is impossible to be absolutely certain about what transpired. However, for the reasons indicated I am satisfied that Ms Pilic’s account of what occurred is to be preferred. I accordingly find she was dismissed from her employment, as required by s.386, in that her employment was “…terminated on the employer’s initiative.” 19

[50] I now turn to consider whether Ms Pilic was unfairly dismissed on the basis that her dismissal was “harsh, unjust or unreasonable.” 20 Section 387 of the Act requires that the Commission must take into account the following matters in determining whether a dismissal was harsh, unjust or unreasonable. It states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.” 21

[51] I now turn to deal with each of these matters. It is noted in this context that given Seltec maintains Ms Pilic was not dismissed it presumably did not give consideration to the various matters in s.387 in conjunction with the termination of her employment.

(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)

[52] It has been established in previous decisions that a “valid reason” 22 for dismissal is one that is “sound, defensible and well founded,”23 as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct and the operational requirements of the business. The test must also be applied in a practical, common sense way to ensure that the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well.

[53] As indicated, given Seltec does not accept that Ms Pilic was dismissed it has not attempted to suggest there was a valid reason for her dismissal. However, I have previously concluded that she appears to have been dismissed as a consequence of an issue that flared up in the discussions in the meeting on 7 August. According to Seltec this occurred because Ms Pilic failed to provide satisfactory responses when asked about what plans she had in the immediate future in regard to some of the major clients of the business. However, it was also made clear in cross-examination that the business had not previously been critical of Ms Pilic’s work performance in the time she was employed. This was confirmed by the evidence of both Mr Pratik Kumar and Mr Ritesh Kumar. I am not satisfied in these circumstances that Seltec had a valid reason for dismissal that was “sound, defensible and well founded.”

(b) whether the person was notified of that reason

[54] It is unclear whether Ms Pilic was provided with a reason for her termination.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[55] It does not appear that Ms Pilic was provided with a real opportunity to respond to the reasons for her termination.

(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

[56] Ms Pilic said that she was not given any prior indication of what the discussions in the meeting on 7 August were to be about, and did not give any consideration to the need to have a support person with her in the meeting.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[57] This consideration is again of limited relevance in this matter.

(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

[58] Seltec is a relatively small business with a limited number of employees. I am satisfied that its size and limited resources inevitably had an impact on what occurred.

(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

[59] I am again satisfied that the absence of any dedicated human resource expertise impacted on what occurred.

(h) any other matters that the FWC considers relevant

[60] The Commission was not made aware of any additional matters that need to be considered in this context.

[61] I am satisfied, in conclusion, having regard to each of the matters in s.387, that Ms Pilic was unfairly dismissed on the basis that her termination was “harsh, unjust, and unreasonable.” I have had particular regard in this context to the lack of a valid reason for termination. I now turn to consider what remedy is appropriate.

Remedy

[62] Section 390 of the Act provides that the Commission may order reinstatement, or the payment of compensation, if it is satisfied that the person was protected from unfair dismissal at the time of being dismissed, and the person has been unfairly dismissed. It also indicates that the Commission must not order payment of compensation unless it is satisfied that reinstatement is inappropriate, and that an order for payment of compensation is appropriate in all the circumstances.

[63] Ms Pilic has not sought to be reinstated. However, I am not satisfied in any case that reinstatement is appropriate, given the circumstances involved. The evidence indicates that it would be very difficult for those involved to re-establish any form of working relationship in what is a relatively small business. I therefore now turn to consider whether it is appropriate to exercise the discretion available to the Commission to order that an amount of compensation be paid to Ms Pilic.

[64] Section 392 of the Act sets out the matters that must be taken into account in exercising the discretion to award an amount of compensation. It states:

“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.” 24

[65] It is also noted that the formula derived from the Full Bench decision in the matter of Sprigg v Paul Licensed Festival Supermarket 25 (‘Sprigg’) has long been accepted as the appropriate approach to adopt in assessing any amount of compensation to be provided under s.392(2). It is also noted that a more recent Full Bench decision in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge26described the approach in Sprigg 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’.” 27

[66] A Full Bench in Haigh v Bradken Resources Pty Ltd T/A Bradken 28 also reaffirmed the principles set out in Sprigg and, in particular, the steps 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 monies earned since termination; the third being to make deductions for contingencies; fourthly, to calculate any impact of taxation; and finally, to apply the legislative cap.

[67] The Full Bench in the more recent matter of Double N Equipment Hire Pty Ltd t/a A1 Distributions v Alan Humphries 29also indicated:

“[17] The identification of this starting point amount “necessarily involves assessments as to future events that will often be problematic” 10. 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.” 30

[68] I now turn to consider what amount of compensation, if any, should be ordered having regard to the relevant legislative provisions and the approach adopted by these authorities.

(a) The effect of the order on the viability of the employer’s enterprise

[69] Seltec indicated in its submissions that it is a relatively small business and it is concerned about the effect of any order of compensation on its viability, given its size and limited financial resources. However, it did not provide any further financial or other information in support of this submission. However, it is accepted that this is a relevant consideration in terms of the exercise of the Commission’s discretion.

(b) The length of the person’s service with the employer

[70] Ms Pilic was employed by Seltec for a relatively short period of 29 weeks, or just under 7 months. It is also noted that during this time she was absent from work for approximately a week and a half while on annual leave, and was also absent for more than a week on sick leave.

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

[71] This is obviously a difficult matter to assess, and involves making a judgement about the likely future “anticipated period of employment” as described in Sprigg. 31 Ms Pilic’s evidence makes clear she was not happy at work and had felt this way for some time. She was concerned about the lack of clear direction, and the lack of support provided by her Manager. She also disliked the attitude and approach of Mr Ritesh Kumar, a consultant to the business, and the way he treated employees.

[72] Ms Pilic was also intending to take a period of leave from 24 October until 23 November in conjunction with her wedding. She had applied for unpaid leave at this time, presumably because she had exhausted her existing paid leave entitlements. She also indicated that she wanted to be employed up to this point because the income was important in terms of financing her wedding arrangements.

[73] I am satisfied that it is reasonable to assume, in all the circumstances, that Ms Pilic was unlikely to continue to be employed by Seltec for an extended period of time, given she was not happy in her employment. I am also satisfied that is reasonable to assume that while she intended to continue to be employed until she took leave, it was likely she would then look for other work on her return from leave. I am accordingly satisfied that it is reasonable to conclude she would have remained in employment with Seltec until the end of 2017, a period of around twenty weeks. However, the period of four weeks she was intending to take as unpaid leave should be deducted from this time period as she would not have been earning any income during this time.

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

[74] Ms Pilic was clearly concerned about her financial circumstances following her dismissal. She was endeavouring to ensure she was in a position to be able to obtain payments from Centrelink as soon as possible. However, she did not provide any further submissions or evidence about her attempts to mitigate her loss. It might also have been difficult for her to obtain other work in the short-term, given she wanted to have a period of time off in October/November in conjunction with her wedding. It is also noted that she was provided with two additional weeks’ pay at the time of her termination.

(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

[75] There is no evidence before the Commission in regard to this matter.

(f) The amount of any income reasonably likely to be earned by the person during the period between the making of the order for compensation and the actual compensation

[76] As indicated, it is reasonable to assume Ms Pilic would have earned an amount of income equivalent to working for twenty weeks, less the period of four weeks while taking unpaid leave.

(g) Any other matters that the Commission considers relevant.

[77] There were no other issues raised in this context.

Conclusion

[78] I am satisfied, in conclusion, that it is appropriate in all the circumstances of this matter for an order of compensation to be made. As indicated, I have had regard to each of the matters in s.392. I have also had particular regard to the size of the business, and the lack of evidence provided about the attempts to mitigate the loss suffered, as well as Ms Pilic’s relatively limited period of employment. I am also satisfied that in accordance with the formula in Sprigg it is appropriate for an amount to be deducted in respect of contingencies. I accordingly order that Ms Pilic be paid an additional amount equivalent to nine weeks’ pay. In this context it is understood that she was earning a gross salary of $50,00.00 per annum or a net amount of $792.00 per week. The total amount is obviously also required to be taxed according to law. In addition, in order to lessen the impact of this decision on Seltec half of the total amount is to be paid within twenty-one days of the date of this decision (being by close of business on Thursday, 15 February 2018), with the balance to be paid within a further twenty-one days (being by Thursday,8 March 2018.) An order reflecting this decision is also now published.

COMMISSIONER

Appearances:

C Pilic on her own behalf.

P Kumar on behalf of the Respondent.

Hearing details:

2017.

Melbourne:

November 21.

 1   Fair Work Act 2009 (Cth) s 385.

 2   Fair Work Act 2009 (Cth) s 386(1).

 3   Fair Work Act 2009 (Cth) s 385(b).

 4   Transcript at PN28.

 5   Transcript at PN30.

 6   Transcript at PN32.

 7   Transcript at PN36.

 8   Attachment to Applicant’s submissions, dated 11 August 2017.

 9   Transcript at PN64.

 10   Witness statement of Applicant, received 9 October 2017, p 3.

 11   Witness statement of Applicant, received 9 October 2017, p 2.

 12   Witness statement of Pratik Kumar, received 3 October 2017, p 2.

 13   Transcript at PN24.

 14   Ibid.

 15 Respondent’s submission’s, dated 3 October 2017 at [4].

 16   Attachment to Applicant’s submissions, dated 11 August 2017.

 17   Witness statement of Applicant, received 9 October 2017, p 3.

 18   Ibid.

 19   Fair Work Act 2009 (Cth) s 386(1)(a).

 20   Fair Work Act 2009 (Cth) s 385(b).

 21   Fair Work Act 2009 (Cth) s 387.

 22   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 23   Ibid.

 24   Fair Work Act 2009 (Cth) at s.392.

 25 (1998) 88 IR 21.

 26   [2013] FWCFB 431.

 27   Ibid at [33]-[34].

 28   [2014] FWCFB 236.

 29   [2016] FWCFB 7206.

 30 Ibid at [17].

 31   Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge [2013] FWCFB 431 at 34.

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