Diaz Gubern v Mimi Family Daycare Service Pty Ltd

[2016] FWC 2101

[2016] FWC 2101

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Maria Diaz Gubern
v
Mimi Family Daycare Service Pty Ltd
(U2015/10857)
COMMISSIONER CIRKOVIC	MELBOURNE, 5 APRIL 2016
Application for relief from unfair dismissal.
Introduction

[1]        On 10 August 2015, Ms Maria Jose Diaz Gubern made an application to the Fair Work

Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for a

remedy in respect of her dismissal by Mimi Family Daycare Service Pty Ltd (the

Respondent).

[2]        The Respondent did not file a response to Ms Diaz Gubern’s application.

[3]        Ms Diaz Gubern’s application was heard on 25 February 2016. Ms Diaz Gubern gave

evidence on her own behalf. I found Ms Diaz Gubern to be a forthright and credible witness.

The Respondent did not appear at the hearing.

Background

[4]        Ms Diaz Gubern commenced full-time employment with the Respondent on 14 July

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2013.   Ms Diaz Gubern’s job title was Family Daycare Coordinator. Ms Diaz Gubern

commenced a training contract with the Respondent on 28 August 2013 to complete a

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Diploma of Early Childhood Education and Care.

[5]        The Respondent company has two Directors, Mr Mohomed Abdiwohab Mohomed

and Ms Ayan Mohamud Abdi, both of whom worked in different capacities for the

Respondent. Ms Diaz Gubern gave evidence that Mr Mohomed is Ms Abdi’s father.

[6] In May 2015, Ms Diaz Gubern gave evidence that she made a complaint to the Fair

Work Ombudsman (FWO) relating to underpayment of wages and superannuation.
[2016] FWC 2101

[7]        Ms Diaz Gubern gave evidence that in the months leading up to her dismissal, she

made a complaint to the Department of Local Government and Communities (DLGC) in

Western Australia. Ms Diaz Gubern stated that the Respondent had certain reporting

obligations to the DLGC which she considered were not being met. Ms Diaz Gubern stated

that she was present in the workplace when a representative of the DLGC advised Mr

Mohomed that the Respondent did not have the required “working with children”

accreditation or the requisite insurance for a childcare provider.

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[8] On 29 July 2015, Ms Diaz Gubern attended work to perform her job as usual. Ms

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Diaz Gubern stated that Mr Mohomed instructed her to leave the workplace, which she did.

She has not been paid since then and considers her employment was terminated, taking effect

on this date.

Procedural History

[9]        The Respondent has not filed a response to Ms Diaz Gubern’s application. Further, the

Commission issued Directions for the filing of materials on 24 December 2015. On 15

January 2015, Ms Diaz Gubern complied with these Directions. The Respondent did not

comply with these Directions.

[10]      I listed this matter for a telephone conference on 3 February 2016. I instructed the

Parties to forward a direct contact telephone number to my Chambers to be dialled into the

conference. The Respondent did not provide a contact telephone number. Further, my

Associate attempted to contact the Respondent on a number of telephone numbers provided

by Ms Diaz Gubern and found online, all of which had been disconnected.

[11]      On 17 February 2016, my Associate served correspondence on the Respondent’s

current registered address by Express Post. The correspondence attached the Notice of Listing

for the hearing and directed the Respondent to s.600 of the Act, which provides that the

Commission may determine a matter before it, in the absence of a person who has been

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required to attend before it. Later that same day, Ms Ayan Abdi of the Respondent

telephoned the Commission. My Associate explained to Ms Abdi that the telephone

conference scheduled for 3 February 2016 did not go ahead as the Respondent had not

participated. My Associate advised Ms Abdi that the matter was listed for a hearing on

Thursday, 25 February 2016 and that correspondence detailing this had been sent by Express

Post. Ms Abdi reconfirmed her email address and this correspondence was resent that same

day by email.

[12]      The Respondent did not attend the hearing on 25 February 2016. I advised that I

considered I would be in a position to hand down my decision the following morning.

[13]      The matter was listed for hearing on 26 February 2016. I advised that due to events in

the intervening period I was not in a position to hand down my decision at that time. Mr

Mohomed arrived in the hearing room after I reserved my decision. Mr Mohomed did not

provide a satisfactory reason for his lateness or for the Respondent’s repeated failure to

engage in this matter.

[2016] FWC 2101

[14]      When asked why there had been a continued failure to engage in this matter, Mr

Mohomed said that he had been away on holiday. Mr Mohomed submitted that the

Respondent business was no longer operating, that it had not been since 26 October 2015. He

confirmed that Ms Abdi is his daughter, that Ms Abdi was also a director of the Respondent

and that he knew Ms Abdi had spoken to the Commission regarding this matter. Mr

Mohomed submitted that the company was still registered.

[15]      I found Mr Mohomed’s explanation as to why the Respondent failed to engage in this

matter to be an inadequate reason to reopen the hearing. The directors of the Respondent were

aware of the procedural directions for a considerable period of time, were also aware of the

times and dates of the conference and hearing of this matter, they failed to engage, did not

seek to have the matter adjourned and did not enter an appearance during the hearing.

[16]      The Respondent has not made any further application to reopen the matter and the

Commission has not received any further correspondence from the Respondent.

Small Business Employer

[17]      Section 23 of the Act defines the meaning of small business employer. Section 23 of

the Act is as follows:

“23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the

employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the

employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that

time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has

been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the

employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small

business employer at a particular time in relation to the dismissal of an employee, or

termination of an employee's employment, the employees that are to be counted

include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being

terminated; and

(b) any other employee of the employer who is also being dismissed or whose

employment is also being terminated.”

[2016] FWC 2101

[18]      At the time of commencement of Ms Diaz Gubern’s employment, the Respondent

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employed nine individuals. Ms Diaz Gubern stated that at the time of the termination of her

employment, the Respondent employed approximately six individuals. Therefore, I am

satisfied that the Respondent is a small business employer within the meaning of s.23 of the

Act.

Protection from Unfair Dismissal

[19]      Section 382 of the Act sets out the circumstances where a person to be protected from

unfair dismissal. Section 382 of the Act is as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment

with his or her employer of at least the minimum employment period; and

(b)

one or more of the following apply:

(i)	a modern award covers the person;
(ii)	an enterprise agreement applies to the person in relation to the

employment;

(iii) the sum of the person’s annual rate of earnings, and such other

amounts (if any) worked out in relation to the person in accordance with

the regulations, is less than the high income threshold.”

[20]      Ms Diaz Gubern was employed by the Respondent for a period of just over two years.

I am satisfied that Ms Diaz Gubern has completed a period of employment of at least the

minimum employment period within the meaning of ss.383 – 384 of the Act. Ms Diaz Gubern

also stated that her employment was covered by the Children’s Services Award 2010. This

7

was provided in Ms Diaz Gubern’s Training Contract and Contract of Employment.

Therefore, I am satisfied that Ms Diaz Gubern is a person protected from unfair dismissal as

she was covered by a modern award pursuant to s.382(b)(i) of the Act.

Unfair Dismissal

[21]      Section 385 of the Act details the circumstances where a person has been unfairly

dismissed from their employment. Section 385 is as follows:

“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

[2016] FWC 2101

(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.”

[22]      Ms Diaz Gubern stated that she was dismissed from her employment on 29 July 2015.

On the materials before me and on the basis of Ms Diaz Gubern’s evidence, I am satisfied that

Ms Diaz Gubern was dismissed within the meaning of s.386 of the Act.

[23]      Ms Diaz Gubern submits that her dismissal was harsh, unjust or unreasonable within

the meaning of s.387 of the Act. I will consider this in detail below. There is no evidence

before me to demonstrate that Ms Diaz Gubern’s dismissal was consistent with the Small

Business Dismissal Code.

[24]      Ms Diaz Gubern stated that the Respondent did not discuss any potential or intended

redundancies with her prior to her dismissal. I am satisfied that Ms Diaz Gubern’s dismissal

was not a case of genuine redundancy within the meaning of s.389 of the Act.

Harsh, unjust or unreasonable?

[25]      Having been satisfied of each of the matters prescribed by s.385(a), (c)-(d) of the Act,

I now must consider whether Ms Diaz Gubern’s dismissal was harsh, unjust or unreasonable.

Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh,

unjust or unreasonable:

“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

[2016] FWC 2101

(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.”

[26]      The type of conduct which may fall within the phrase ‘harsh, unjust or unreasonable’

was explained by the High Court of Australia in Byrne v Australian Airlines Ltd (1995) 185

CLR 410. McHugh and Gummow JJ explained as follows:

“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 of which the employer

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acted.”

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[27]      I will now consider each of the matters set out in s.387 of the Act.

Valid Reason – s.387(a)

[28] In considering whether it is satisfied that a dismissal was harsh, unjust or

unreasonable, the Commission must take into account whether there was a valid reason for the

dismissal related to the person’s capacity or conduct (including its effect on the safety and

10

welfare of other employees). When considering whether a reason is a valid reason for the

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purpose of s.387(a) of the Act, the reason must be “sound, defensible or well founded”. A

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reason which is “capricious, fanciful, spiteful or prejudiced” cannot be a valid reason.

[29]      Ms Diaz Gubern stated that she did not consider that there were any reasons which

related to her capacity to perform her duties or any conduct which might have led to her

dismissal. Ms Diaz Gubern stated that during her two years as an employee of the

Respondent, she never received any warnings or counselling, either formally or informally. I

accept this evidence. Therefore, based on the materials before me and Ms Diaz Gubern’s
[2016] FWC 2101

evidence, I am not satisfied that there was a valid reason either related to capacity or conduct

for Ms Diaz Gubern’s dismissal.

Notification of the Valid Reason – s.387(b)

[30] In considering whether it is satisfied that a dismissal was harsh, unjust or

unreasonable, the Commission must take into account whether the person was notified of the

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reason. Procedural fairness requires that an employee be notified of a valid reason for their

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termination before any decision is taken to terminate their employment. The notification of

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the valid reason must be in explicit, plain and clear terms.

[31]      Ms Diaz Gubern stated that she was not notified of the reason for her dismissal. I am

not satisfied that Ms Diaz Gubern was notified of the reason for her dismissal in explicit,

plain and clear terms.

Opportunity to Respond – s.387(c)

[32] In considering whether it is satisfied that a dismissal was harsh, unjust or

unreasonable, the Commission must take into account whether the person was given an

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opportunity to respond to any reason related to the capacity or conduct of the person. An

employee must be notified of the reason for termination and must also be given an

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opportunity to respond to that reason before the decision to terminate is made. This process

does not require any formality and is to be applied in a common sense way to ensure the

18

employee has been treated fairly. Where an employee is aware of the precise nature of the

employer’s concern about his or her conduct or performance and has a full opportunity to

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respond to this concern, this is enough to satisfy the requirements of this section.

[33]      As Ms Diaz Gubern was not notified of the reason for her dismissal from the

Respondent. I am not satisfied that Ms Diaz Gubern was given an opportunity to respond to

any reason related to her capacity or conduct. Ms Diaz Gubern was unaware of the reason for

her termination and was not given an opportunity to respond to any such reason.

Unreasonable Refusal of a Support Person – s.387(d)

[34] In considering whether it is satisfied that a dismissal was harsh, unjust or

unreasonable, the Commission must take into account any unreasonable refusal by the

employer to allow the person to have a support person present to assist at any discussions
[2016] FWC 2101

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relating to dismissal.	With respect to this consideration, the Explanatory Memorandum
states:

“This factor will only be a relevant consideration when an employee asks to have a

support person present in a discussion relating to dismissal and the employer

unreasonably refuses. It does not impose a positive obligation on employers to offer an

employee the opportunity to have a support person present when they are considering

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dismissing them.”

[35]      Ms Diaz Gubern stated that on 29 July 2015, she did not request a support person to be

present. Further, there were no further dicsussons between Ms Diaz Gubern and the

Respondent relating to her dismissal. Therefore, I consider this to be a neutral consideration in

determining whether Ms Diaz Gubern’s dismissal was harsh, unjust or unreasonable.

Warnings regarding Unsatisfactory Performance – s.387(e)

[36] In considering whether it is satisfied that a dismissal was harsh, unjust or

unreasonable, if the dismissal related to unsatisfactory performance by the person, the

Commission must take into account whether the person had been warned about that

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unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely

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to relate to the employee’s capacity to do the job than their conduct. The Commission must

take into account whether there was a period of time between an employee being warned

about unsatisfactory performance, and a subsequent dismissal. This period of time gives the

employee the opportunity to understand their employment is at risk and to try and improve

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their performance.

[37]      A warning must identify the relevant aspect of the employee’s performance which is

of concern to the employer and make it clear that the employee’s employment is at risk unless

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the performance issue identified is addressed. A mere exhortation to improve is not

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sufficient. These considerations are to be applied in a practical and common sense way

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taking into account the employment context.

[38]      Ms Diaz Gubern stated that at no time during her employment did she receive any

warnings or counselling, either formally or informally, relating to her performance. I accept

Ms Diaz Gubern’s evidence in this regard.

Impact of the Size of the Respondent on Procedures Followed - s.387(f)

[39]      I consider that as the Respondent was a small business, it may have impacted on the

procedures it followed. However, on materials before me there is no evidence of any

procedures followed by the Respondent.

[2016] FWC 2101

Absence of dedicated human resources management specialist/expertise on procedures

followed - s.387(g)

[40]      I consider that the lack of human resources specialists may have contributed to the

Respondent’s procedural failures. Mr Diaz Gubern gave evidence that matters relating to

human resource management were dealt with by Mr Mohomed and Ms Abdi. However, on

materials before me there is no evidence of any procedures followed by the Respondent.

Other Relevant Matters – s.387(h)

[41] In considering whether it is satisfied that a dismissal was harsh, unjust or

unreasonable, the Commission must take into account any other matters that the Commission

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considers relevant. Ms Diaz Gubern did not submit that there were any other relevant

matters the Commission ought to take into consideration. On the materials before me, I do not

consider that there are such matters.

Conclusion

[42]      In the circumstances of this case, and taking into account the matters set out above, I

am satisfied the dismissal of Ms Diaz Gubern was harsh, unjust and unreasonable. Her

dismissal was harsh because of the consequences for Ms Diaz Gubern; unjust, because no

reasons were provided and Ms Diaz Gubern was not afforded procedural fairness; and

unreasonable because of the manner in which the Respondent set about effecting the

dismissal. I therefore find Ms Diaz Gubern’s dismissal was unfair.

Remedy

[43]      Section 390 of the Act sets out the circumstances in which I may make an order for

reinstatement or compensation:

“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

[2016] FWC 2101

(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.”

[44]      I have already dealt with the issues at s.390(1)(a)–(b) above. I am satisfied Ms Diaz

Gubern was protected from unfair dismissal pursuant to s.382 of the Act and she was

dismissed unfairly. Accordingly, I am required to determine whether to order the

reinstatement of Ms Diaz Gubern or, in circumstances where reinstatement is inappropriate,

an order for compensation if I am satisfied such an order is appropriate in all the

circumstances.

Reinstatement

[45]      Ms Diaz Gubern seeks compensation as the primary remedy. Regardless of the remedy

sought by Ms Diaz Gubern, s.390 of the Act requires I first determine whether reinstatement

is appropriate before I may consider an order for compensation.

[46] Ms Diaz Gubern submits reinstatement would be inappropriate because the

Respondent is not currently operating as it has had its accreditation suspended by the DLGC.

Ms Diaz Gubern gave evidence that she was present when a representative of the DLGC

visited the workplace and told Mr Mohomed that the Respondent did not have a valid

working with children check nor the requisite insurance for a childcare provider (which I have

accepted). I also accept Ms Diaz Gubern’s evidence that the Respondent no longer operates

the childcare centre at which she was employed.

Consideration

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[47] Reinstatement might be inappropriate in a range of circumstances. Including

circumstances where the employer is no longer conducting a business into which the

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employee may be reappointed. This is the case in this matter. In the circumstances I am

satisfied that reinstatement is inappropriate.

Compensation

[48]      Section 390(3)(b) provides I may only make an order for compensation to the

Applicant if it is appropriate in all the circumstances.

[49]      I have found that Ms Diaz Gubern was unfairly dismissed by the Respondent and that

reinstatement is not appropriate in all the circumstances. I am satisfied that an order for

compensation should be made as it is appropriate.

[50]      Section 392 of the Act sets out the circumstances that must be taken into consideration

when determining an amount of compensation, the effect of any findings of misconduct on

that compensation amount and the upper limit of compensation that may be ordered:

[2016] FWC 2101

“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.

[2016] FWC 2101

Note: subsection 392(5) indexed to $68,350 from 1 July 2015

(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.”

[51]      The approach to be taken to calculate compensation pursuant to s.392 of the Act was

considered by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and

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District Retirement Villages Inc. T/A Ottrey Lodge (Bowden). In Bowden, the Full Bench set

out the order in which the criteria and other factors should be applied, taking into account the

32

principles established in Sprigg v Paul’s Licensed Festival Supermarket and Ellawala v

33

Australian Postal Corporation . I have adopted the methodology as set out in Bowden to

determine the quantum of compensation to be ordered in this matter.

[52]      I will now consider each of the criteria in s.392 of the Act.

Remuneration that would have been received: s.392(2)(c)

[53]      Ms Diaz Gubern’s remuneration with the Respondent was $24 per hour and she was

employed on a full time 38 hour per week basis. Ms Diaz Gubern provided her Training

Contract which set out that she was employed on a full time basis for a period of 36 months.

In her Training Contract the commencement date of employment was 28 August 2013, 36

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months later would be 28 August 2016. Ms Diaz Gubern also provided three payslips from

35

her time with the Respondent. These payslips demonstrate that Ms Diaz Gubern’s earnings

varied throughout the year. I accept that Ms Diaz Gubern intended to remain in employment

with the Respondent. There is uncertainty about the on-going status of the business. The only

evidence in relation to this issue is that which Ms Diaz Gubern has given, evidence that the

Respondent no longer operates the childcare centre where she was employed. However, I do

not consider Ms Diaz Gubern should be prejudiced because of this.

[54] I determine the period of time Ms Diaz Gubern would have remained employed by the

Respondent, or would have likely remained employed with the Respondent, had she not been
[2016] FWC 2101

unfairly dismissed was six months (24 weeks). The remuneration she would have received

during that period would have been $21,888.

Remuneration earned: s.392(2)(e)

[55]      After her dismissal Ms Diaz Gubern continued working part time as a cleaner, a

position she had held prior to her dismissal. She also obtained casual employment with

another employer. Ms Diaz Gubern provided evidence of her earnings during the six months

following her dismissal at the hearing on 25 February 2016.

[56]      I find Ms Diaz Gubern has earned $13,978.50 in remuneration during the six month

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period following her dismissal by the Respondent. I deduct this amount from the

compensation to be ordered. I have reduced the compensation to $7,909.50 on account of this

factor.

Income likely to be earned: s.392(2)(f)

[57]      Ms Diaz Gubern gave evidence, and provided payslips, for the amount of income she

earned during the six months following the termination of her employment by the

Respondent.

Other matters: s.392(2)(g)

[58]      There are no other matters that I consider appropriate to consider.

Viability: s.392(2)(a)

[59]      There has been no evidence or argument as to the financial situation of the Respondent

37

or the likely effect that an order for compensation will have on the viability of the business.

Length of service: section (s.392(2)(b))

[60]      I consider that Ms Diaz Gubern’s period of service with the Respondent, being 24

months, should not affect the quantum of compensation to be ordered.

Mitigating efforts: s.392(2)(b)

[61]      In considering whether the Ms Diaz Gubern has taken steps to mitigate the loss

suffered as a result of the dismissal I should take into account whether she acted reasonably in

38

the circumstances.

[62]      I consider that Ms Diaz Gubern has taken appropriate steps to mitigate her loss by

seeking comparable employment. She has continued in her part time employment with the

39  40

cleaning company. She has also obtained some additional casual work and had secured an

interview for a permanent part-time position at the time of the hearing.
[2016] FWC 2101
Misconduct: s.392(3)

[63]      I have not found any misconduct by Ms Diaz Gubern that contributed to the dismissal.

Shock, Distress: s.392(4)

[64]      I note that the amount of compensation calculated does not include a component for

shock, humiliation or distress.

Compensation cap: s.392(5)

[65]      I must reduce the amount of compensation to be ordered if it exceeds the lesser of the

total amount of remuneration received by the Applicant, or to which the Applicant was

entitled, for any period of employment with the employer during the 26 weeks immediately

before the dismissal, or half the amount of the high income threshold immediately prior to the

dismissal.

[66]      Half of the high income threshold is $68,350. The amount of compensation that I will

order does not exceed this amount.

[67]      I will order the Respondent to pay to Ms Diaz Gubern the amount of $7,909.50 as

compensation.

Conclusion

[68]      I am satisfied that Ms Diaz Gubern was protected from unfair dismissal, and that her

dismissal was unfair and a remedy of compensation is appropriate in the circumstances.

[69]      An order giving effect to this decision will be issued with this decision.

COMMISSIONER

Hearing details:

2016

25 – 26 February.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR578680>

1

Exhibit A1; Exhibit A9, p. 2

2

Exhibit A2

3

Ibid

4

Ibid

5

Fair Work Act 2009 (Cth) s.600

6

Exhibit A2

7

Exhibit A2; Exhibit A4

8

Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465 (McHugh and Gummow JJ)

9

Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]

10

Fair Work Act 2009 (Cth) s. 387(a)

11

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

12

Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

13

Fair Work Act 2009 (Cth) s. 387(b)

14

Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151; Gooch v Proware Pty Ltd T/A TSM (The Service Manager)

[2012] FWA 10626

15

Previsic v Australian Quarantine Inspection Services (unreported, AIRC, Holmes C, 6 October 1998) Print Q3730,

16

Fair Work Act 2009 (Cth) s. 387(c)

17

Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151

18

Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7

(Wilcox CJ)

19

Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14-15 citing Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7

(Wilcox CJ)

20

Fair Work Act 2009 (Cth) s.387(d)

21

Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1542]

22

Fair Work Act 2009 (Cth) s.387(e)

23

Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237

24

Johnston v Woodpile Investments T/A Hog’s Breath Café - Mindarie [2012] FWA 2, [58]

25

Fastidia Pty Ltd v Goodwin (unreported, AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) Print S9280, [43]

26

Fastidia Pty Ltd v Goodwin (unreported, AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) Print S9280, [44]

27

Fastidia Pty Ltd v Goodwin (unreported, AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000) Print S9280, [44]

28

Fair Work Act 2009 (Cth) s.387(h)

29

Regional Express Holdings Ltd T/A Rex Airlines [2010] FWAFB 8753 at [26]

30

Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014]

FWCFB 7198 (unreported, Ross J, Gostencnik DP, Wilson C, 21 October 2014) [17]; citing Chelvarajah v Global

Protection Pty Ltd (2004) 142 FCR 296

31

[2013] FWCFB 431

32

(1998) 88 IR 21

33

Print S5109

34

Exhibit A2

35

Exhibit A7

36

Ibid

37

D.A. Moore v Highplace Pty Ltd (unreported, AIRCFB, Boulton J, Watson SDP, Whelan C, 18 May 1998) PRQ0851

38

Biviano v Suji Kim Collection PR915963 at [34].

39

Exhibit A7