FURTHER DECISION IN REGARD

TO REMEDY

Fair Work Act 2009
s.394—Unfair dismissal

David Keogh
v
French Par-Bake
(U2016/11839)

COMMISSIONER CRIBB

MELBOURNE, 15 SEPTEMBER 2017

Application for relief from unfair dismissal - compensation in lieu of reinstatement.

[1] This decision concerns the final determination of an amount of compensation, in lieu of reinstatement, to be ordered by the Fair Work Commission (the Commission), pursuant to section 392 of the Fair Work Act 2009 (Cth) (the Act). It follows the decision 1 issued on 26 May 2017 in which the Commission found that Mr David Keogh was unfairly dismissed. In that decision, the Commission was unable to determine an amount of compensation as there was insufficient material before the Commission at that time.2

[2] Accordingly, Mr Keogh was requested to provide details of any remuneration earned between 9 January 2017 and 26 May 2017, together with the relevant payslips. Mr Keogh was also requested to provide an estimate of what he was likely to earn between 26 May 2017 and 6 September 2017 together with the basis for calculating the estimate.

[3] On 8 June 2017, on behalf of Mr Keogh, a letter was provided relating to income earned between 9 January 2017 and 26 May 2017, and likely to have been earned between 26 May 2017 and 6 September 2017. 3

[4] A letter was received from French Par-Bake on 9 June 2017 in response to Mr Keogh’s submissions. 4

[5] Numerous letters were subsequently filled in response by both parties, with further submissions received on Mr Keogh’s behalf on 14 June 2017 and 22 June 2017, 5 and on behalf of French Par-Bake on 15 June 2017 and 19 June 2017.6

Section 392 (2) (e) and (f) – remuneration earned and income likely to be earned

[6] In the previous decision, the Commission found that, based on the payslips currently before the Commission, between 7 September 2016 and 8 January 2017, Mr Keogh earned a total of $9,881.24. 7 This was based on $660 having been earned between 7 September 2016 and 7 November 2016 and then $9,221.24 between 8 November 2016 and 8 January 2017.8

[7] With respect to the period from 9 January 2017 to 4 June 2017, the Commission was provided with payslips which showed Mr Keogh’s earnings from 9 January 2017 until 4 June 2017. 9 The payslips showed that Mr Keogh earned $33,764.42 over this period.

[8] Therefore, it was submitted by Mr Keogh that his remuneration, for the period of 7 September 2016 to 4 June 2017, was $43,645.66.

[9] On the other hand, the Respondent contended that Mr Keogh had earned an amount of $47,401.48 for the period from 7 September 2016 to 4 June 2017. This was said to be based on the earnings year to date figure at the bottom of the 6 June 2017 pay slip of $46,741.48 plus $660 for the period from 7 September 2016 to 8 November 2016. 10

[10] The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 4393
Decision Date: 15 SEPTEMBER 2017

CaseChat Overview and Summary

This case involved a claim for compensation in lieu of reinstatement by David Keogh against French Par-Bake, following a finding of unfair dismissal. The Fair Work Commission was tasked with determining the appropriate amount of compensation after earlier being unable to decide due to insufficient evidence. The legal issues included calculating the remuneration earned by Mr Keogh from 7 September 2016 to 4 June 2017 and estimating the income he was likely to earn from 5 June 2017 to 6 September 2017. The Commission found that Mr Keogh earned $43,645.66 between 7 September 2016 and 4 June 2017, based on the payslips provided. For the period from 5 June 2017 to 6 September 2017, the Commission calculated an anticipated income of $18,627.18, using an average of Mr Keogh’s earnings between 8 November 2016 and 4 June 2017. The total remuneration earned and likely to be earned was $62,272.84, which exceeded the estimated gross earnings Mr Keogh would have received if not dismissed. Given this, the Commission found no loss suffered by Mr Keogh, and therefore, no deduction for contingencies or compensation cap was applicable. The Commission concluded that awarding zero compensation was inadequate due to the loss of job security, length of service, and long service leave. It determined that a modest compensation of $4,500 (gross) was appropriate, and it was not necessary to order the payment in instalments.

Orders