David Rees v NCC Concrete Services
[2018] FWC 4665
•16 AUGUST 2018
| [2018] FWC 4665 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 394—Unfair dismissal
David Rees
v
NCC Concrete Services
(U2018/2874)
| DEPUTY PRESIDENT SAMS | SYDNEY, 16 AUGUST 2018 |
Termination of employment – application for an unfair dismissal remedy – concreter – employee dismissed during Christmas ‘shut down’ period – employee not told to return to work – employee given no reason or explanation for not being able to return to work – no communication with employee – employer refused to engage with the Commission, failure to attend conferences, failure to comply with directions, failure to attend proceedings – no explanation – employer warned that decision could be made based on material available to the Commission – matter heard ex parte – employee’s evidence accepted – no valid reason for dismissal – no procedural fairness – employee’s dismissal ‘harsh, unjust and unreasonable’ both substantively and procedurally – dismissal manifestly unfair – alternative employment obtained – reinstatement inappropriate – compensation ordered according to the Sprigg formula – orders made.
This decision concerns an application filed by Mr David Rees, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), in which Mr Rees seeks a remedy from the Fair Work Commission (the ‘Commission’) for his alleged unfair dismissal by NCC Concrete Services t/a NCC Concrete Services [ABN 27 612 487 073] (the ‘Company’ or the ‘Respondent’) on 1 March, 2018. Mr Rees commenced employment as a concreter for a Company owned by Mr Nathan Casuscelli on 1 July 2016. That company (which appears from a payslip provided by the applicant to be NC Labour Hire Pty Ltd ABN 99 602 462 804), and its subsequent iteration, NCC Concrete Services, provides concreting services on the Central Coast of NSW.
The background to this decision reveals an apparent complete disdain for the employer’s responsibilities in respect to responding to Mr Rees’s application and disrespect towards this Commission. It is necessary that I set out this background.
Mr Rees filed his unfair dismissal application on 19 March 2018. He identified Mr Nathan Casuscelli as the contact person for the respondent Company. He provided a post box address for the respondent in Toowoon Bay and details of Mr Casuscelli’s email and mobile phone number.
On 26 April 2018, Mr Casuscelli was advised of a telephone conciliation with a Commission Conciliator on 1 May 2018, who had also directed the respondent’s attention to the requirement under Rule 19 of the Commission’s Rules to provide a response (a Form F3 – Employer’s Response to an Unfair Dismissal Application) to Mr Rees’s application within 7 days. No response has ever been provided and Mr Casuscelli was unable to be contacted by the Conciliator, Mr T Ferrari on the day of the conciliation. Mr Ferrari emailed the parties the next day as follows:
“Mr Rees/Mr Casuscelli, I refer to the Conciliation for the above matter which was scheduled to occur at 2.15pm yesterday.
Neither mobile was answered at 2.15pm. Mr Rees, after hearing your mobile “message” I left a message for you to ring me. You rang back and I rang back..sometimes there was silence on the message..quite strange.
My call to you was to advise that Mr Casuscelli had not answered his phone and it rang out. The Conciliation was not able to take place as the Respondent was not available. FWC has attempted communication a number of times with Mr Casuscelli without success.
Mr Casuscelli, are you willing to engage in a further Conciliation attempt. Thank you if you can respond”.
The application was subsequently referred to me for hearing. I listed the arbitration for 9 July 2018 and issued directions for the filing of an outline of submissions and evidence. A further phone conference was listed before me on 21 May 2018. Mr Casuscelli was again unable to be contacted. As a result, my Associate advised him on 28 May 2018 as follows:
‘Dear Mr Casuscelli
U2018/2874 - Rees, David v NCC Concrete Services T/A NCC Concrete Services
I am emailing you in relation to the above matter, which was listed for a conference last Monday, 21 May 2018 (refer to the notice of listing sent to you on 10 May 2018 attached). Deputy President Sams requires an explanation from you as to why you did not appear at last Monday’s conference and why you did not advise the Commission beforehand that you would not be attending or represented. I tried calling you several times but was unable to reach you.
The Deputy President has asked that I remind you that the respondent is due to file its evidence and material in opposition to Mr Rees’s application by no later than 4pm on 21 June 2018. You were also directed to file your response to the application (Form F3) by no later than 4.00pm on Thursday 17 May 2018. Should the respondent provide no evidence in opposition to Mr Rees’s application, the Commission will determine Mr Rees’s application based on the available material before the Commission at the hearing on Monday 9 July 2018.
You are also required to CC the applicant in all documents filed in the Commission and all correspondence with the Deputy President’s Chambers.’
There is nothing to suggest that the abovementioned emails were not received by the respondent or misdirected somewhere else. Perhaps unsurprisingly, Mr Casuscelli did not reply to the Commission’s directions and did not comply with the directions issued on 10 May 2018. Mr Rees provided a one page statement, which I will come to shortly.
My Associate emailed Mr Casuscelli again on 21 June 2018 as follows:
“Dear Mr Casuscelli
The Deputy President notes that you have not provided a response to Chambers’ email below. His Honour also notes that the respondent has not made any submissions in relation to Mr Rees’s unfair dismissal application. The Deputy President has asked that I remind you that should the respondent fail to provide any submissions or evidence in relation to this matter, the Deputy President will determine the application, (which may result in an order of compensation against the Company), on the information available to it. Currently, that only includes the application and Mr Rees’s witness statement”.
The matter was listed for hearing on 9 July 2018. Mr Rees appeared for himself. There was no appearance for, or on behalf of the respondent. Mr Rees stated that he had spoken to an employee of Mr Casuscelli who informed him he may be trading under the name of ‘Baycrete’. Mr Rees said he had tried to contact Mr Casuscelli, but the calls went to message bank. Mr Rees provided a pay slip for the period 3/1/18 to 9/1/18 which is headed:
Paid by
NCC Concrete Services
PO Box 7003
Toowoon Bay NSW 2262
ABN 27612 487 073.
The pay slip disclosed Mr Rees’s annual salary as $82,576.
Given that I was satisfied that all reasonable steps had been taken to advise the respondent of the listing for hearing; the respondent has had zero communications with the Commission; had obviously not complied with the Commission’s directions; had failed to attend the hearing, without any explanation, I proceeded to hear the matter ex parte.
THE EVIDENCE
Mr Rees’s statement is brief so I set it out in full as follows:
‘I, David Alex Rees, started my employment wit [sic] NCC Concrete Services on the 1st of July 2016. I was employed on a permanent contract of 40 hours per week not including overtime. Whilst employed by Mr Casuscelli, I was working as an unpaid supervisor. My duties ranged from completing formwork and concrete finishing as well as communicating with site supervisors and company executives.
I was notified on the 21/11/17 via email that the company would be closing for business during the Christmas break, starting on the 19th December 2017. Business would resume on the 17th of January 2018.During this time I was not notified that I would in fact be ceasing employment with them.
I started trying to call both Nathan and his father Clive about a week before we were due to start work as I hadn't heard from anyone regarding the first job. Neither would answer their phones or respond to messages I had left them.
Clive eventually answered a phone call (in January) and told me that work was starting at the start of Feb 2018 when one of our contracted companies came back from the Christmas holidays and I would be called just before hand.
On the 9th of February, my partner Jess gave birth to our daughter 4 weeks early. That afternoon I tried to ring Nathan and Clive to tell them my good news and to let them know I would be taking my paternity leave. No answer.
I finally got a hold of Clive on the 1/3/2018 and he told me that he had been told "I was dealt with over Christmas and I didn't have a job to go to." When asked why I had been dismissed he stated he was unsure. I was then told NCC Concrete Services was no longer operating it was in fact operating under his company Grand Concreting.
He then proceded [sic] to tell me he would backdate a separation certificate. During my 18 month employment I was never once given a written warning or was told of any wrong-doings. During those months after the Christmas period I was never told a reason for my dismissal.’
In oral evidence, Mr Rees confirmed that, he and other employees, traditionally went on annual leave when the Company had a compulsory ‘shutdown’ over Christmas. At the time, he was due back he tried to make contact with Mr Casuscelli and his father, but got no response. Eventually speaking to Mr Casuscelli’s father (Clive), he was told by him that he ‘was dealt with over Christmas and didn’t have a job to go to’. Mr Rees had no idea why he had no job. The Company had around 12 employees 6 months previously and he understood that there was now 8-10; all of whom are still working. Mr Rees obtained alternative full-time employment in the first week of July with Falcon Constructions. He had earnt around $17,800 in subcontracting work prior to this.
Mr Rees was not sure when he was actually dismissed, but believed it may have been in March. Despite being promised a backdated separation certificate from Mr Casuscelli’s father, it was never provided. He was paid nothing after the last pay slip for 9 January 2018. Mr Rees advised that he originally commenced working for Mr Casuscelli when his Company was known as NC Labour Hire Pty Ltd, ABN 996 0246 2804. Mr Rees also claimed he was not paid his contracted hours by Mr Casuscelli. He sought his outstanding entitlements and compensation for his unfair dismissal.
CONSIDERATION
Statutory provisions
An unfair dismissal is defined in s 385 of the Act. That section is to be read in conjunction with s 396. The two sections read:
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; and
(c)the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a)whether the application was made within the period required in subsection 394(2);
(b)whether the person was protected from unfair dismissal;
(c)whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
At this juncture, pursuant to s 396 of the Act, I dispose of any preliminary issues in this matter by making the following findings:
(a)Mr Rees was dismissed at the initiative of the employer on or around 1 March 2018;
(b)Mr Rees’s unfair dismissal application was lodged within the 21 day statutory time period set out in s 394(2)(a) of the Act;
(c)The respondent may have been a small business at the relevant time, but even if the Small Business Fair Dismissal Code applied in this case (s 396(c)), the respondent has obviously failed to prove it was complied with to the requisite standard (or at all);
(d)Mr Rees’s dismissal was not a case of genuine redundancy (ss 389, 396(d)); and
(e)Mr Rees was a person protected from unfair dismissal in that;
i.he had completed the minimum employment period of 1 year 8 month (s 383); and
ii.his annual rate of earnings was less than the high income threshold (ss 382(b)(iii).
Accordingly, the only matter remaining to be determined by the Commission is whether Mr Rees’s dismissal was ‘harsh, unjust or unreasonable’ (s 385(b)), within the meaning of s 387 of the Act. It is to these matters to which I now turn.
Section 387 of the Act sets out the criteria that the Commission must consider in determining whether a dismissal was ‘harsh, unjust or unreasonable’. It is expressed as follows:
‘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.’
The meaning of the phrase ‘harsh, unjust and unreasonable’ is to be found in the well-known quote from Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, where McHugh and Gummow JJ said:
‘It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect tof which the employer acted.’
As mentioned earlier, the only evidence presented in this case was Mr Rees’s evidence in support of his case. As this evidence has not been contradicted, his evidence stands unchallenged and I accept it. Moreover, from my observation of Mr Rees in the witness box, he was a thoughtful and impressive witness whose evidence should be accepted. Accordingly, I accept that Mr Rees was never told of any reason for his dismissal. I also accept his description of the unfair process embarked on by the respondent, leading up to his dismissal. I now turn to address the specific criteria in s 387 of the Act.
Was there a valid reason for the applicant’s dismissal (s 387(a))?
A ‘valid reason’ must be ‘sound, defensible and well founded’, as set out in the judgment of Northrop J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, in which His Honour said:
‘In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudicial could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly’.
The circumstances described by Mr Rees in his evidence could not possibly result in any adverse findings against him. Not so for the respondent. There was no reason given for Mr Rees’s dismissal. It is manifest therefore that there was no valid reason for his dismissal. His dismissal was ‘capricious’, ‘fanciful’ and grossly unfair. The absence of a valid reason will invariably result in a dismissal being found to be unfair; see: Parmalat Food Products Pty Ltd v Wililo (2011) 207 IR 243 at [24].
Was the applicant notified of the reason(s) for his dismissal (s 387(b))?
The applicant was not notified of any reason for his dismissal. This tells in favour of a finding of unfairness.
Was the applicant given an opportunity to respond to any reason related to capacity or conduct (s 387(c))
Obviously the applicant was given no opportunity to respond to an unknown reason for his dismissal. This was demonstrably unfair and must weigh in favour of a finding that the dismissal was procedurally unfair.
Was there an unreasonable refusal by the respondent to have a support person present (s 387(d))
There was no refusal by the respondent to allow Mr Rees to have a support person to any relevant meeting, because there were no meetings related to his dismissal. This is a neutral factor in my consideration.
If the dismissal related to unsatisfactory performance by the person--whether the person had been warned about that unsatisfactory performance before the dismissal (s 387(e))
There was no evidence that Mr Rees was anything other than a good and committed employee. No issues of unsatisfactory performance arise in this case. This is a neutral factor.
The degree to which the size of the respondent’s enterprise and its access to dedicated human resource specialists affected the process leading up to the applicant’s dismissal (ss 387(f), (g))
The respondent’s appalling treatment of Mr Rees and his disdain for this Commission bear no relationship to the size of the respondent’s business and provide no excuse for the respondent’s conduct. The manner of Mr Rees’s dismissal disclosed a complete denial of natural justice and procedural fairness which would have been obvious, even to the most inexperienced, unsophisticated employer.
Other relevant matters (s 387(h))
Mr Rees received no notice of his dismissal. I have taken that matter into account. While Mr Rees raised issues of underpayment, these are matters which he is able to pursue in a court of competent jurisdiction, or initially with the Fair Work Ombudsman (FWO).
Given the above findings, it is patently clear that the applicant’s dismissal was both procedurally and substantively unfair. Having considered the matters outlined above, I find that the dismissal of the applicant was ‘harsh, unjust and unreasonable’, within the meaning of s 387 of the Act.
REMEDY
I turn now to the provisions of ss 390-392 of the Act, which are as follows:
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.
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
“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.”
Given Mr Rees has obtained alternative employment as a concreter and understandably does not seek reinstatement, I determinate that reinstatement in this case would be inappropriate.
The methodology to be adopted by the Commission in calculating compensation, having regard for each of the matters set out in s 392 of the Act, (often referred to as the Sprigg formula), was considered by a Full Bench of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. t/a Ottrey Lodge [2013] FWCFB 431 (‘Ottrey’); see also: Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 (‘Sprigg’) and Ellawala v Australian Postal Corporation [1999] AIRC 1250 and in Balaclava Pastoral Co Pty Ltd ATF O’Connor-Fifoot Family Trust v Nurcombe [2017] FWCFB429 (‘Balaclava’):
‘[42] The correct approach to the assessment of compensation was summarised by the Full Bench in the recent decision in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Alan Humphries as follows (footnotes omitted):
“[16] The well-established approach to the assessment of compensation under s.392 of the FW Act, taking into account the matters specified in s.392(2), is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket. This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c) - that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this 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’...’
[17] The identification of this starting point amount “necessarily involves assessments as to future events that will often be problematic” . 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.”
[43] We would add to this that in quantifying compensation, it is necessary to set out with some precision the way in which the various matters required to be taken into account under s.392(2) (and s.392(3) if relevant), and the steps in the Sprigg formula, have been assessed and quantified. That is to say, the way in which a final compensation amount has been arrived at should be readily apparent and explicable from the reasons of the decision-maker.’ (footnotes omitted)(my emphasis)
In adopting the above methodology, I make specific findings as follows:
(a) As the respondent put no evidence as to the effect any order of compensation would have on the viability of its enterprise, I am not satisfied that the order I intend to make would have any deleterious effect on the respondent’s viability.
(b) Mr Rees has one year and 8 months’ service with the respondent – a reasonable, but not lengthy period of employment.
(c) It is notoriously difficult to speculate with any certainty, how long a period an unfairly dismissed employee would have continued in employment, but for their dismissal. In McCulloch v Calvary [2015] FWCFB 873, the Full Bench of the Commission put it this way and said at para [27]:
‘[27] We would also observe that, in our view, the evidence upon which the Commissioner relied was insufficient to sustain the inference that, but for the dismissal, the appellant would only have remained in employment for a further 8 weeks, at which time he would be summarily terminated. Implicit in the Commissioner’s finding is that the conduct which led to his dismissal (and which the Commissioner found did not constitute a valid reason for termination) would not only be repeated within a relatively short period of time but would in fact be repeated in a more serious form such as to constitute serious misconduct. While the task of determining an anticipated period of employment can be difficult, it must be done. In the context of this case it seems to us that the Commission would require cogent evidence to conclude that a person such as the appellant, who was dismissed without a valid reason, would only have worked another 8 weeks at which time he would have been summarily dismissed. The Commissioner’s s.392(2)(c) finding constitutes a significant error of fact, within the meaning of s400(2) of the Act.’
(i) In my opinion, Mr Rees would have had a reasonable expectation of at least another six months’ work. There are no performance issues which would give cause to think otherwise. His annual salary was $82,576.00. Six months further full-time employment equates to a figure of $41,288.00.
(ii) Mr Rees was successful in obtaining alternative full-time employment as a concreter on 2 July 2018. I am satisfied he has made a real and genuine effort to mitigate the losses suffered by his dismissal.
Mr Rees received no notice of termination and no payment in lieu of notice. I have taken that matter into account. I make no deductions for other contingencies.
Given that there was no misconduct of the applicant, no deduction in compensation is made on that score (s 392(3)).
The order I intend to make contains no component by way of compensation for shock, distress, humiliation or other analogous hurt (s 392(4)).
Compensation assessment
The compensation cap in relation to Mr Rees is the lesser of the amount equivalent to the remuneration earned by him in the 26 weeks immediately before his dismissal (s 392(6)) and half the high income threshold immediately before the dismissal. The high income threshold is not relevant. Remuneration earnt in the 26 weeks’ before dismissal is $41,289.00. As mentioned, I have determined that Mr Rees would have remained in employment for a further period of 6 months period equating to $41,289.00. He has earnt $17,800.00 in alternative sub-contractor employment. That amount is to be deducted from the 6 months of lost employment.
According to the Sprigg formula, the amount of nominal compensation is $41,289.00 - $17,800.00 which equals $23,489.00. This amount is below the cap of Mr Rees’ remuneration in the 26 weeks prior to his dismissal. Accordingly, I propose to order an amount of compensation of $23,489.00.
CONCLUSION
For the aforementioned reasons, I am satisfied the dismissal of Mr Rees by the respondent was ‘harsh, unjust and unreasonable’, within the meaning of s 387 of the Act. Finally, s 381(2) of the Act is a significant and overreaching object of Part 3-2. It is expressed in these terms:
381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(a) to establish procedures for dealing with unfair dismissal that
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(b) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.
Note: The expression "fair go all round" was used by Sheldon J in in re Loty and Holloway v Australian Workers' Union [1971] AR (NSW) 95.’
In this case, I am satisfied reinstatement is inappropriate and compensation in an amount of $23,489.00, is appropriate having regard to all the circumstances of this case. I am satisfied that the remedy I have determined will ensure a ‘fair go all round’. The amount so ordered is subject to any deductions of appropriate taxation, according to law. The amount of compensation is to be paid to the applicant within 21 days of today. Orders giving effect to my conclusions will be published contemporaneously with this decision. The respondent is reminded that a failure to comply with the Commission’s order may result in criminal prosecution; see: s 675 of the Act and the Commission’s Unfair Dismissal Benchbook.
DEPUTY PRESIDENT
Appearances:
Mr D Rees for himself.
No appearance for the respondent.
Hearing details:
2018.
Sydney:
9 July.
Printed by authority of the Commonwealth Government Printer
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