Dimce Dimkovski v

[2023] FWC 726

[2023] FWC 726

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dimce Dimkovski
v

Majorsite Property Group Pty Ltd

(U2022/11659)

DEPUTY PRESIDENT CLANCY MELBOURNE, 27 MARCH 2023

Application for an unfair dismissal remedy –

1. On 8 December 2022, Mr Dimce Dimkovski made an application to the Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Dimkovski’s unfair dismissal application is Majorsite Property Group Pty Ltd (the Respondent). 

1. Upon making the application Mr Dimkovski informed the Commission that he did not have an email address for the Respondent but he indicated the contact person was Mr Yahya Atay and provided the mobile telephone number for Mr Atay. On 13 December 2022, the Commission made a phone call to Mr Atay on the mobile number provided, leaving a voicemail requesting a call back to the Commission. Correspondence was also sent to the email address that was provided but it subsequently became apparent that this did not belong to the Respondent. The Commission then was able to make contact with the Respondent’s accountant, who was initially reluctant to assist. Eventually, on 9 January 2023, the accountant was prepared to provide an email address for the Respondent.

1. By this time an initial telephone conciliation before a Commission staff member listed to take place on 19 December 2022 had been abandoned. Upon obtaining the new email address from the Respondent’s Accountant, a Notice of Listing for a telephone conciliation to take place on 2 February 2023 was sent to the Respondent on 16 January 2023. On 31 January 2023, the Respondent was emailed a letter informing him that the Form F3 - Employer response to unfair dismissal form (Form F3) was outstanding.

1. Telephone contact was attempted on 16 December 2022, 4 January 2023, 9 January 2023 and 31 January 2023. None of the calls were answered but voicemail messages were left by the Commission requesting a call back and informing the Respondent of the application.

1. On 2 February 2023, with the Respondent having failed to attend the telephone conciliation, a voicemail was left informing Mr Atay that if he did not make himself available for the conciliation, the matter would be referred to arbitration with a Member of the Commission. A second call was made and answered by Mr Atay, who proceeded to inform the Commission that he was unavailable to attend the conciliation. Mr Atay claimed to know nothing about either the requests for the Form F3 or the conciliation conferences but advised that he would submit the requested Form F3 and suggested another conciliation be listed for 7 February 2023.

1. I was allocated the matter later on 2 February 2023. I caused an email to be sent to the parties (which included the Respondent at the email address provided by the Respondent’s Accountant) with Directions setting out when the parties were required to file and serve their material ahead of an arbitration to be held on 23 March 2023 and advising that a Notice of Listing would also be sent. A follow-up email was sent to the Respondent on 15 March 2023 because it had failed to file and serve material in accordance with the Directions and there was further email correspondence sent on 17 March 2023 which confirmed the hearing would be proceeding on 23 March 2023.

1. On 22 March 2023, my Chambers received an email from Mr Dimkovski’s representative, Ms Liana Tomassini, advising that she had contacted Mr Atay to confirm that he was aware of the hearing. This email outlined that Mr Atay claimed not to have been aware of the hearing and had stated that would not attend as he was currently in Sydney. Mr Atay suggested that he might seek legal representation. Ms Tomassini also reported that she confirmed with Mr Atay that the Respondent’s email address was that which had previously been provided by the Respondent’s Accountant.

1. When the hearing was due to commence on 23 March 2023 at the Fair Work Commission in Melbourne, neither Mr Atay, nor any other representative of the Respondent appeared, despite the matter remaining listed and having been announced in the foyer area outside of the Commission’s level 6 hearing rooms.

1. There was no application for an adjournment sent to my Chambers and I was satisfied that reasonable steps had been taken to make contact with the Respondent and notify it of the hearing, and that the Respondent and Mr Atay were on notice that the hearing would be proceeding on 23 March 2023. I therefore proceeded with the hearing in the absence of a representative for the Respondent. Ms Tomassini appeared for Mr Dimkovski and he gave evidence.

1. Having regard to the uncontested evidence and submissions of Mr Dimkovski, I am satisfied:

·  On or around 15 January, 2022 Mr Dimkovski was employed as a cleaner by the Respondent on a permanent part-time basis, reporting to Mr Atay.

·  While there does not appear to have been a written contract of employment between Mr Dimkovski and the Respondent, payslips produced to the Commission indicate that Mr Dimkovski was paid by the Respondent.

·  The Respondent provides cleaning services at a number of locations in Victoria, as a subcontractor to other cleaning companies.

·  Mr Dimkovski was first rostered to work at H&M Clothing (H&M)at Northland Shopping Centre.

·  Mr Dimkovski was informed by Mr Atay that CleanNet Australia had the cleaning contract at H&M and that the Respondent was a subcontractor for CleanNet Australia.

·  Mr Dimkovski’s hours of work were 15 hours a week, normally working from 7:00am until 10:00am Monday to Friday.

·  In or around late April 2022, Mr Dimkovski took leave for one or two days to get some tests done. When Mr Dimkovski received his payslip for that period, he noticed that his rate of pay had been cut from $27 per hour to $23 per hour.

·  On or around 20 May 2022, Mr Dimkovski called Mr Milan (the Respondent’s accountant) and queried why he had received a different rate of pay. Mr Milan responded with words to the effect that he had been directed by Mr Atay to pay Mr Dimkovski at the lower rate. Later the same day Mr Dimkovski contacted Mr Atay with the same enquiry and Mr Atay confirmed this, claiming he could pay Mr Dimkovski what he chose to pay him and that if Mr Dimkovski wanted to “take sickies”, he would thereafter be paid $23 per hour.

·  On or around 26 September 2022, Mr Dimkovski had to undergo surgery on both his hands for Carpal Tunnel Syndrome. A week or two before Mr Dimkovski’s surgery he received a call from Mr Atay asking him to fill in for a cleaner at the Union Square Brunswick Shopping Centre (Union Square) in Brunswick West. Mr Dimkovski went to Union Square, met with Mr Atay and was shown what to do and how to clean the site. Mr Atay offered Mr Dimkovski the job at Union Square on Saturdays and Sundays on a permanent basis. Mr Dimkovski said that he could do so after his surgery and was informed by Mr Atay that the rate would be $32 per hour.

·  Mr Dimkovski was off work for two or three weeks due to his surgery. When he resumed at Union Square, his average hours were 6 hours per week, working alone from approximately 11:00am until 2:00pm on Saturdays and Sundays.

·  During the week prior to the week commencing 31 October 2022, a CleanNet supervisor called Mr Dimkovski, enquiring whether he and his daughter wanted to do cleaning work at Leo’s Supermarket in Heidelberg (Leo’s) from 8pm until 10pm seven days a week. Mr Dimkovski subsequently agreed to perform this work for 5 days per weeks and was advised that Mr Atay would pay him for this work.

·  When Mr Dimkovski presented for work at Leo’s on 31 October 2022, he received a demonstration regarding the cleaning requirements. He was concerned that the store could not be cleaned in the 2-hour timeframe and so called the CleanNet supervisor. Mr Dimkovski said he nonetheless completed the shift but when he subsequently suggested to the CleanNet Supervisor in a returned phone call that the store was too big to be cleaned within two hours, he was told he would not be getting further work from the Supervisor.

·  Mr Dimkovski did not work at Leo’s again.

·  On or around 1 or 2 November 2022, Mr Dimkovski received a call from Mr Milan enquiring about his work at Leo’s. He said an exchange to the following effect occurred:

Mr Dimkovski: I am not doing it anymore.

Mr Milan: Why did you stop Leo's?

Mr Dimkovski: I'm not happy with the hours.

·  When Mr Atay called Mr Dimkovski the following week, Mr Dimkovski told Mr Atay that he would not be doing the work at Leo’s as there was too much work to be done within two hours. Mr Dimkovski also told Mr Atay that he had confirmed this with the CleanNet supervisor and requested payment for the 2 hours he had worked on 31 October 2022 at Leo’s. Mr Dimkovski, said that as far as he was aware, he has not been paid for those 2 hours.  

·  Ahead of his shift at Union Square on 12 November 2022, Mr Dimkovski was informed by a co-worker that he (the co-worker) had been told by Mr Atay to work at Union Square. When Mr Dimkovski and the co-worker both attended Union Square the following day, Mr Dimkovski saw a text message sent from Mr Atay to the co-worker directing the co-worker to work the shift. Mr Dimkovski ultimately worked the Union Square shifts on both 12 and 13 November 2022. The Respondent again unilaterally changed his rate of pay and applied the rate of $27 per hour for what appeared to be the last pay period of Mr Dimkovski’s employment.

·  On 17 November 2022 a number of text messages passed between Mr Dimkovski and Mr Milan, as follows:

Mr Milan: Hey Dimce, Yahya said do not go to union square work anymore. Thank you

Mr Dimkovski: Hay how are you. Yahya still hasn't called me can you tell him to call me so I can know what's going on thanks

Mr Milan: I talked to him yesterday and he said that you do not need to work at union square anymore. He said even Nick is not happy as he was upset with Heidelberg job as well. That's all I know

Mr Dimkovski: Ok do you have any schools I can do if not can I please have my annual leave.

Mr Milan: I have to check with Yahya and let you know.[1]

·  Mr Dimkovski made several attempts to contact Mr Atay about future work after this but did not receive any response.

Initial matters to be considered – s.396 of the Act

1. Mr Dimkovski’s application was made within the 21-day period after the alleged dismissal took effect, as required by s.394(2) of the Act (s.396(a)) and I am satisfied that he is a person protected from unfair dismissal because there was uncontested evidence he had completed the minimum employment period with the Respondent, having been employed from January 2022 until 17 November 2022, and was covered by the Cleaning Services Award 2020 and engaged on an annual rate of earnings less than the $162,000 high income threshold (s.396(b)). Further, as there is nothing to suggest that the Respondent was a small business employer, the matter does not require consideration of whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c)). Finally, there is no claim before me and nor does the material before me suggest the dismissal was a case of ‘genuine redundancy’ within the statutory definition of that term (s.396(d)).

Section 385 of the Act – was the dismissal unfair?

1. As to the circumstances set out at s.385 of the Act, I am satisfied on the material before me that Mr Dimkovski was dismissed (s.385(a)). Further, as outlined above, this would not appear to be a matter that involves a small business, such that consideration of whether Mr Dimkovski’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)) is required or one where it is claimed the dismissal was a case of ‘genuine redundancy’ within the statutory definition of that term (s.385(d)).

1. This leaves s.385(b) and in determining whether the dismissal was harsh, unjust or unreasonable, I must have regard to s.387 of the Act:

“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.”

1. I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[2]

1. In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced.”[4]

1. Mr Dimkovski submits that there was no valid reason for the dismissal for the following reasons:

·  He was not provided any reason for the dismissal;

·  Not wanting to work the 2-hour shifts at the Leo’s site for the contractor is not a valid reason for dismissal and should not have been a factor in the decision to dismiss him;

·  He has a workplace right to express concerns about the work, health and safety of his workplace conditions, including the ability to effectively clean a worksite in a given amount of time;

·  He remained ready, willing and able to work shifts at both the Barkley Square site and at other sites and communicated this readiness to the Respondent on numerous occasions.

1. Based on the material before the Commission, I am satisfied that on or about 12 November 2022, the Respondent sought to replace Mr Dimkovski at Union Square and that the Respondent subsequently relayed, through its accountant, Mr Atay’s direction to Mr Dimkovski to no longer work at Union Square. Further, I am satisfied that after this, Mr Dimkovski was not offered work or directed to attend work elsewhere and nor was he contacted by Mr Atay. In these circumstances, I am satisfied that Mr Dimkovski was dismissed by the Respondent.

1. I am not persuaded there was a valid reason for the dismissal related to Mr Dimkovski’s capacity or conduct (s.387(a)) and as such, ss.387(b) and (c) do not apply. The evidence before me suggests Mr Dimkovski completed his shift at Leo’s but Mr Atay did not engage fulsomely with Mr Dimkovski’s concerns regarding the Leo’s work. In addition, Mr Atay did not appear to take serious issue with Mr Dimkovski’s actions and nor did he attempt to resolve them directly one way or another. I am satisfied Mr Atay elected not to directly engage with Mr Dimkovski after their conversation at the beginning of the week commencing 7 November 2022. That there was no valid reason for the dismissal related to either Mr Dimkovski’s capacity or conduct or his unsatisfactory performance weighs in favour of a finding that his dismissal was unfair.

1. On the facts before me, neither s.387(d) s.387(e) have application and I can give no weight either way in relation to ss.387(f) and (g) because the Respondent did not file any material or attend the hearing to make submissions addressing these factors.

1. As to s.387(h), I have had regard to unchallenged evidence from Mr Dimkovski that he was dismissed without notice and have noted his submissions that he is the primary breadwinner for his family and that the dismissal placed him under financial stress. I also note Mr Dimkovski appears to have been treated very poorly by his former employer in the following respects:

The Respondent twice unilaterally varied terms of his rate of remuneration in what seemed to be retaliatory moves, firstly because Mr Dimkovski was absent from work for medical reasons[5] and secondly because he had declined to continue working at Leo’s.[6]

Mr Dimkovski was not paid his entitlement to one week’s notice upon termination;[7]

Mr Dimkovski has not been paid the balance of accrued annual leave upon termination which, from his final payslip, appears to equate to 43.61537 hours; [8]

Mr Dimkovski does not appear to have been paid for his two hours of work at Leo’s on 31 October 2022; [9] and

Mr Dimkovski appears to have been underpaid during the course of his employment for his weekend work a Union Square.[10]

1. These various matters also weigh in favour of a finding that his dismissal was unfair.

Consideration

1. Having considered each of the matters specified in s.387 of the Act, I am satisfied the dismissal of Mr Dimkovski was harsh because it would appear the Respondent took a set against him because he voiced concerns about the requirements for shifts at Leo’s and instead of discussing and resolving these issues with him, terminated his employment. This followed some very poor treatment of Mr Dimkovski during his employment.

1. Further, I am satisfied on the material and evidence before me that the dismissal was unjust and unreasonable because it had no sound, defensible or well-found basis. There was no valid reason for the dismissal related to Mr Dimkovski’s capacity or conduct and nor was the dismissal related to unsatisfactory performance.

1. Accordingly, I find that Mr Dimkovski’s dismissal was unfair. Mr Dimkovski’s application for unfair dismissal remedy is therefore granted.

Remedy

1. In the circumstances where I have found Mr Dimkovski was protected from unfair dismissal at the time of being dismissed and that he has been unfairly dismissed, s.390 of the Act prescribes that a remedy is available. Accordingly, I am required to determine whether to order the reinstatement of Mr Dimkovski or, if I am satisfied reinstatement is inappropriate, to order the payment of compensation if I am satisfied that such an order is appropriate in all the circumstances.[11]

1. Mr Dimkovski advised he did not seek the remedy of reinstatement and submits that there has been a loss of trust and confidence between himself and the Respondent. Noting this and the Respondent’s failure to deal with the application in any substantive way, I am satisfied that reinstatement is inappropriate (s.390(3)(a)).

1. I must therefore consider whether it is appropriate in all the circumstances to make an order for payment of compensation (s.390(3)(b)).

1. Section 392 of the Act sets out the criteria for determining the amount of compensation that may be ordered:

“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.”

1. In considering each of the criteria in s.392 of the Act, it is useful to refer to the restatement of principles to be applied in the assessment of compensation in Mr RobertJohnson v North West Supermarkets T/A Castlemaine IGA:

“[41] The well-established approach to the assessment of compensation under s 392 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 current legislative framework 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’...”

[42] The identification of this starting point amount ‘necessarily involves assessments as to future events that will often be problematic,’ but, as the Full Bench observed in McCulloch v Calvary Health Care Adelaide, ‘while the task of determining an anticipated period of employment can be difficult, it must be done.’

[43] 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.” [12]

(my emphasis - references omitted)

1. The Sprigg formula was discussed and refined in Ellawala v Australian Postal Corporation[13] as follows:

“[31] The principles applicable to determining an amount to be ordered in lieu of reinstatement are dealt with in Sprigg. In that case the Full Bench endorsed the following approach:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

[32] Any amount provisionally arrived at by application of these steps is subject to whether offsetting weight is given to other circumstances, including those that need now to be taken into account under paragraphs 170CH(7)(a), (b) and (c). The legislative cap on the amount able to be ordered is then applied pursuant to ss.170CH(8) and (9).

[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". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.

[35] In a particular case the Commission estimates that if the applicant had not been terminated then he or she would have remained in employment for a further 12 months. The applicant has earned $3,000 a month for the 18 months since termination, that is $54,000. Only the money earned in the first twelve months after termination - that is $36,000 - is deducted from the Commission's estimate of the applicant's lost remuneration. Monies earned after the end of the "anticipated period of employment", 12 months after termination in this example, are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment.

[36] The next step is to discount the remaining amount for "contingencies". This step is a means of taking into account the possibility that the occurrence of contingencies to which the applicant was subject might have brought about some change in earning capacity or earnings.

…

[45] In relation to the fourth step set out in Sprigg we note that the usual practice is to settle a gross amount and leave taxation for determination.”

(my emphasis, references omitted)

1. In Balaclava Pastoral Co Pty Ltd t/a Australian Hotel Cowra v Darren Nurcombe,[14] the Full Bench stated 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. The Full Bench also proffered that 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.

1. I consider it is appropriate in all the circumstances to make an order for payment of compensation and will assess compensation having regard to these considerations.

Remuneration that would have been received if the dismissal had not occurred – s.392(2)(c)

1. This factor requires a speculative assessment of what might have occurred had Mr Dimkovski not been dismissed on 17 November 2022 and how long he might otherwise have remained employed by the Respondent. I have noted that in the 10 months of his employment, Mr Dimkovski had no shortage of work and it would appear he had been asked by Mr Atay to work at three different sites. I have also noted Mr Dimkovski was placed at Union Square and that Mr Atay appears to have reacted negatively to Mr Dimkovski’s reluctance to continue working at Leo’s. I am not persuaded by the submission from Mr Dimkovski that he would have continued working for the Respondent for a further 10 years until his retirement. While I accept Mr Dimkovski liked working at the Union Square location, I have formed the view, based on the material before the Commission, that the Respondent is a very poor employer.[15] It would appear the Respondent operated an opaque, irregular sub-contracting business model and that Mr Atay applied whatever rates of pay he pleased, paying scant regard to both his contractual obligations to Mr Dimkovski and the terms and conditions of the Cleaning Services Award 2020. The account Mr Dimkovski gave of his interactions with Mr Atay and the complete failure of Mr Atay to engage with the Commission’s processes leave the impression that Mr Atay is an unimpressive and unscrupulous business operator. I am not persuaded that Mr Atay’s treatment of Mr Dimkovski would have remained tolerable for much longer, let alone 10 years. Certainly I do not consider their ongoing working relationship was at all sustainable. I also cannot be certain that the Respondent would have retained the Union Square work for that period. Therefore, I am only prepared to find that Mr Dimkovski would have been employed for another 6 months/26 weeks at most.

1. The Respondent does not appear to have applied the correct Saturday and Sunday rates when paying Mr Dimkovski for his work at Union Square. Applying them,[16] I calculate 26 weeks paid at $259.44 gross per week (3 hours x $37.55 plus 3 hours x $48.93) produces a total of $6,745.44 gross and find this to be the starting point of my calculation of appropriate compensation.

Remuneration earned – s.392(2)(e) and income reasonably likely to be earned – s.392(2)(f) and (g)

1. Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is also to be taken into account (under s.392(2)(f) of the Act).

1. Mr Dimkovski produced evidence that he had earned remuneration from employment totalling $421.07 since being dismissed,[17] which comprised $355.63 earnings from work for Premier Cleaning Services Pty Ltd and $65.44 for work on 3 March 2023 with Borg Property Services. Mr Dimkovski commenced his employment with Borg Property Services on 3 March 2023 for 12.5 hours per week on a 4pm – 6.30pm shift at the part time level 1 Cleaner rate of pay (which is currently $29.59).[18] At the time of the hearing, Mr Dimkovski was imminently expecting a further payment for the pay period from 6 March 2023 – 19 March 2023. I calculate his earnings for the 6-19 March 2023 pay period to be $739.75 and I further calculate that there would be another $369.87 payable for the additional week worked immediately prior to the date of this decision. These three components produce a total of $1,530.69. As to the consideration in s.392(2)(f) of the Act, for the period until the actual compensation pursuant to the order I intend to make, Mr Dimkovski would earn an additional $739.75 from his employment with Borg Property Services. Adding the s.392(2)(e) and s.392(2)(f) components together produces a total of $2,270.44.

Viability – s.392(2)(a)

1. There was no evidence before me that would support a finding that an order for compensation will affect the viability of the Respondent in any material way and as such, there will be no deduction made having regard to this factor.

Mitigation efforts – s.392(2)(d)

1. In considering whether Mr Dimkovski has taken steps to mitigate the loss suffered as a result of the dismissal, I note that Mr Dimkovski made enquiries on ‘industry job boards’ and with his contacts and applied for 5 jobs on Seek before securing alternative employment.[19] I consider his job searching was likely punctuated by the Christmas/New Year holiday period and note that he is limited to working part time.[20] Having regard to these matters, I am not inclined to make any adjustment that would reduce an award of compensation.

Length of service – s.392(2)(b) any other matters – s.392(2)(g)

1. Mr Dimkovski was employed for 10 months. This is not an extensive period of time and there will be no adjustment either way on account of this factor.

1. A distinguishing feature of this case is that on 3 March 2023, Mr Dimkovski commenced employment with a new employer in a position from which he derives a weekly wage that is almost twice as much as his weekly earnings for his work at Union Square for the Respondent. Any remuneration likely to be earned after the date of actual compensation (s.392(2)(f)) date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula.[21] Continuing in the new role during the 6-week balance of the 26-week period I have determined that Mr Dimkovski would have remained in employment with the Respondent would see Mr Dimkovski earning $369.87 gross per week and an additional total of $2,219.22.

1. Adding this $2,219.22 to the actual and likely income for Mr Dimkovski for the period from the date of his dismissal until the actual compensation ($2,270.44)[22] produces the total of $4,489.66. Deducting this from the $6,745.44 starting point would leave $2,255.78 compensation.

1. I observe that Mr Dimkovski is 57 years old and served in his position without performance or conduct issues until he was terminated. I accept Mr Dimkovski held the expectation that he would have remained employed, although I disagree this would have been for 10 years for the reasons I have outlined above.

Misconduct – s.392(3)

1. I am not persuaded there is evidence of misconduct and as such, this factor does not arise in the case.

Compensation cap – s.392(5)&(6)

1. Section 392(5) of the Act dictates that the compensation available to the applicant is capped at the lesser of the following two figures.

• half of the high income threshold at the time of the dismissal (i.e. $81,000.00); or

• the higher of total amount of remuneration that Mr Dimkovski either received or to which he was entitled, during the 26 weeks of his employment immediately before his dismissal.

1. Having regard to the payslips he produced,[23] I have calculated the total amount of remuneration to which Mr Dimkovski was entitled in the 26 weeks immediately before the dismissal (19 May 2022 – 16 November 2022) was $7070.50.[24] Since this amount is less than half of the income threshold at the time of the dismissal ($81,000.00), the compensation cap for Mr Dimkovski is $7,070.50 gross.

1. The amount of compensation I intend to order does not exceed the compensation cap.

Instalments – s.393

1. There having been no submissions made on this point, I do not consider that there is any reason for compensation to be made by way of instalments.

Shock, Distress – s.392(4)

1. The amount of compensation calculated must not and will not include a component for shock, distress, humiliation or other analogous hurt caused to Mr Dimkovski by the manner of his dismissal.

Conclusion

1. I am satisfied that Mr Dimkovski was protected from unfair dismissal, that the dismissal was unfair and that order for compensation is an appropriate remedy in all the circumstances. In this case, I have noted that the Respondent appears not to have paid Mr Dimkovski notice on termination, his annual leave accrual and his wages for the work at Leo’s on 31 October 2023. I also note that it would appear the Respondent did not apply the correct penalty rates to Mr Dimkovski’s work at Union Square. These are not matters about which the Commission can make orders when determining an unfair dismissal application. Mr Dimkovski will need to pursue such entitlements for non-payment and underpayment in a Court of competent jurisdiction.

1. The overarching requirement in assessing compensation is to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.[25] It has been observed by previous Full Benches of the Commission, that if the application of the Sprigg formula ‘yields an amount which appears either clearly excessive or clearly inadequate’ then the Commission should reassess the assumptions made or reached.[26]

1. My assessment is that in all the circumstances of this case, it is appropriate to award compensation to Mr Dimkovski for the 15-week period between his dismissal and his commencement with Borg Property Services on 3 March 2023 based upon the rates of pay in the Cleaning Services Award 2020[27] less the only remuneration he earned during that time ($355.63).[28] This amount totals $3,535.97 and is calculated as follows:

• 15 weeks x $259.44 (3 hours x $37.55 plus 3 hours x $48.93) = $3,891.60 minus $355.63.

1. To this $3,535.97, I will add 10.5% superannuation, which gives a gross figure of $3,907.24.

1. An order[29] requiring the payment of $3,907.24 less taxation as required by law before 8 April 2023 will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

Ms L Tomassini for Mr Dimkovski.

Hearing details:

2023.
Melbourne.
March 23.

[1] Digital Court Book (DCB) at 64.

[2] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

[3] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

[4] Ibid.

[5] Exhibit A1 at paragraphs [22]-[24].

[6] Ibid at [63].

[7] Applicant’s Submissions dated 20 February 2023 at [49].

[8] Attachment DD1 to Exhibit A1 at DCB 62.

[9] Exhibit A1 at [43].

[10] Pursuant to the Cleaning Services Award 2020, the applicable hourly rates for Level 1 part time employees are $37.55 for Saturday work and $48.93 for Sunday work – see clauses 15.1 and 20.2(b).

[11] Section 390(3) of the Act.

[12] Mr Robert Johnson v North West Supermarkets T/A Castlemaine IGA[2017] FWCFB 4453.

[13] Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000).

[14] [2017] FWCFB 429 at [43].

[15] See above at [20].

[16] Pursuant to the Cleaning Services Award 2020, the applicable hourly rates for Level 1 part time employees are $37.55 for Saturday work and $48.93 for Sunday work – see clauses 15.1 and 20.2(b).

[17] Exhibit A2 and Exhibit A4.

[18] Exhibit A3- Items 4 & 5 of Schedule 1 and Cleaning Services Award 2020 at Clauses 15.1 and 20.2(b).

[19] Exhibit A1 at paragraph 65 and attachment DD4.

[20] Exhibit A1 at paragraph 12.

[21] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206 at [31].

[22] Arrived at by adding the highlighted amounts in paragraph [35] above.

[23] Attachment DD1 to Exhibit A1 – noting there is duplication for the 3-16 October 2022 pay period and I have used the payslip with the higher amount of $288.00 only.

[24] From the gross amount on the payslip for the 16-26 May 2022 pay period, I have deducted the gross amount payable for the 9 contracted hours of work on Monday16 May 2022 – Wednesday 18 May 2022 (9 x $23 = $207.00).

[25] McCulloch v Calvary Health Care Adelaide[2015] FWCFB 873 at [29] and Mr Robert Johnson v North West Supermarkets T/A Castlemaine IGA[2017] FWCFB 4453 at [43].

[26] Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32] and McCulloch v Calvary Health Care Adelaide[2015] FWCFB 873 at [29].

[27] Pursuant to the Cleaning Services Award 2020, the applicable hourly rates for Level 1 part time employees are $37.55 for Saturday work and $48.93 for Sunday work – see clauses 15.1 and 20.2(b).

[28] Exhibit A2.

[29] PR760604.

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