Dr Debbie Obatoki v Mallee Track Health & Community Services

[2015] FWC 6805

[2015] FWC 6805 [Note: An appeal pursuant to s.604 (C2015/7025) was lodged against this decision - refer to Full Bench decision dated 23 December 2015 [[2015] FWCFB 8791] for result of appeal.]

FAIR WORK COMMISSION

FURTHER DECISION IN REGARD

TO REMEDY

Fair Work Act 2009
s.394—Unfair dismissal

Dr Debbie Obatoki
v
Mallee Track Health & Community Services
(U2014/6367)

COMMISSIONER CRIBB MELBOURNE, 1 OCTOBER 2015

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

[1] This decision concerns determination of an amount of compensation, in lieu of reinstatement, to be ordered by the Fair Work Commission (Commission), pursuant to section 392 of the Fair Work Act 2009 (the Act). It follows the decision 1 issued on 7 May 2015 in which the Commission found that Dr Debbie Obatoki had been unfairly dismissed. In that decision, the Commission was unable to finally determine an amount of compensation as there was insufficient material before the Commission at that time.2

[2] Accordingly, Dr Obatoki was directed to provide the Commission and the Respondent with the amount of any remuneration earned between 13 April 2014 and 12 April 2015 (section 392(2)(e) and (f)).

[3] On 12 August 2015, on behalf of Dr Debbie Obatoki, Dr Victor Obatoki provided information relating to income likely to have been received (section 392(2)(c)) and income earned between 13 April 2014 and 12 April 2015. 3 Further material was provided by Dr Victor Obatoki, on behalf of Dr Debbie, on 18 August 2015.4

[4] In his submissions, Dr Obatoki argued that the income likely to have been received by Dr Debbie, if she had not been dismissed, was $94,990.72. 5 This amount was calculated on the basis of an hourly rate of $90.64 and an average of 16 hours per week over a 52 week period. This came to $75,412.48.6

[5] In addition, Dr Victor Obatoki contended that, from 28 February 2014, Dr Debbie would have earned an additional 24 hours over each 6 week period (from working 5 days a week). 7 Attached to Dr Victor Obatoki’s Submissions in reply were screenshots of Dr Debbie’s calendar. These were said to show that Dr Debbie was rostered to work a full week.8 As well, between 13 April 2014 and 12 April 2015, it was argued that Dr Debbie had worked an extra 216 hours as Dr Victor was away. These additional hours amounted to an extra $19,578.24.9

[6] Therefore, it was stated that the amount of remuneration likely to have been received by Dr Debbie was a total of $94,990.72. 10

[7] A response was received from Mallee Track Health & Community Services (Mallee Track) on 17 August 2015. 11 Mallee Track argued that the Applicant’s submissions were not supported by proper evidence. Issue was taken with the Applicant’s submission that she has not earned any remuneration between 13 April 2014 and 12 April 2015. It was contended that this assertion was unable to be tested and so could not properly be given weight.12

[8] Mallee Track also submitted that the Respondent should not be held liable for the failure of the Applicant to obtain other paid employment by taking up employment with the Onyx Medical Centre where Dr Debbie agreed not to be paid in her first year of employment. 13

[9] Further, it was contended by Mallee Track that the Applicant’s claim for lost earnings should be limited to the period from 13 April 2014 to 9 November 2014. The latter date was said to be the date on which Dr Debbie commenced employment with the Onyx Medical Centre. Calculated on this basis, the result was said to be, in relation to lost earnings, the amount of $43,081.63. With a 20% reduction for contingencies, the Respondent argued that the amount of compensation that should be awarded was $34,465.30, as this is less than the compensation cap of $36,241.66. 14

[10] Finally, it was stated that the Applicant did not contest Mallee Track’s previous evidence that led to the Commission’s finding in relation to remuneration likely to have been received. 15

Considerations and conclusions

[11] As the Commission is now in receipt of all of the necessary information, the Commission will now deal with determination of an amount of compensation.

1. Remuneration that would have previously been received (section 392(2)(c))

[12] In its decision on 7 May 2015, on the basis of the material before it, the Commission determined that the remuneration likely to have been received was $72,483.32 (52 weeks multiplied by $1,393.91) 16 The decision stated that this amount was based on the figures provided by Mallee Track in their Closing Submissions. There was no challenge to these figures by Dr Debbie, either during the hearing process or following the issuing of the decision. It is noted that the decision at first instance was appealed by the Applicant.

[13] Therefore, I confirm the amount of $72,483.32(gross) as the remuneration that Dr Debbie would have received or would have been likely to receive from Mallee Track (section 392(2)(c)). 17

2. Efforts to mitigate loss (section 392(2)(d))

[14] In the previous decision, it was found that Dr Debbie was working at the Onyx Medical Centre and that it seemed that Dr Debbie had sought to mitigate her loss. 18 Following receipt of the additional material on behalf of Dr Debbie, it is apparent that Dr Debbie unsuccessfully attempted to obtain alternative employment with the other clinics in Mildura. Taking all of this into account, I am satisfied that Dr Debbie has made reasonable efforts to mitigate her loss.

3. Remuneration earned (section 392(2)(e) and income reasonably likely to be earned (section 392(2)(f))

[15] On behalf of Dr Debbie, it was submitted that there had been no income earned during the period of anticipated employment (between 13 April 2014 and 12 April 2015). Dr Debbie’s bank statements were provided in support of this contention. 19 This was despite having attempted to obtain alternative employment with the other Mildura clinics. It was stated by Dr Victor that, in the end, Dove Investments had established the Onyx Medical Centre in order to provide Dr Debbie with an avenue for maintaining her registration with the Australian Health Practitioner Regulatory Agency (AHPRA). It was explained that Dr Debbie’s registration was at risk if she had not practiced clinically for more than 6 consecutive months.20

[16] Mallee Track contended that only the period from Dr Debbie’s dismissal until 9 November 2014 (when Dr Debbie commenced with the Onyx Medical Centre) should be taken into account. This was on the basis that Dr Debbie agreed not to be paid for her work at the Onyx Medical Centre. Therefore, Mallee Track should not be held accountable for Dr Debbie’s inability to obtain other paid employment.

[17] Despite none of the additional material provided, at the direction of the Commission, being in the form of sworn evidence, it is accepted that Dr Debbie tried unsuccessfully to find paid alternative employment. Dr Debbie’s bank statements do not show that she has been in receipt of remuneration for any work done between 13 April 2014 and 12 April 2015. Mallee Track’s contentions, in relation to Dr Debbie’s unpaid work at the Onyx Medical Clinic, are acknowledged and understood. However, as a matter of fact, Dr Debbie has not earned any income during the period of anticipated employment. There is no evidence before me which would suggest that, if Dr Debbie had not worked on an unpaid basis with the Onyx Medical Centre, she would have been in alternative paid employment with another medical clinic. If there had not been the need for Dr Debbie to maintain her AHPRA registration, coupled with her inability to find alternative employment with another Mildura clinic, it may well have been that Dr Victor would not have established the Onyx Medical Centre.

[18] Therefore, I have not been persuaded to shorten the period of anticipated employment as proposed on behalf of the Respondent. As Dr Debbie did not earn any income between 13 April 2014 and 12 April 2015, the provisional amount of $72,483.32 (gross) remains unchanged.

4. Other matters (section 392(2)(g))

[19] As set out in previous decision, it is proposed to make a deduction of 20% for contingencies. 21 This results in a provisional amount of $57,986.66.

[20] The impact of taxation has been considered but a gross amount will be settled on.

[21] There are no other matters that are considered relevant in determining an amount of compensation instead of reinstatement, apart from those in section 392(2)(a) - (g) and section 392(3) and section 39 (5). These will now be dealt with.

5. Section 392(2)(a) - viability

[22] As found in the previous decision, there is no evidentiary basis before me on which to conclude that an award of compensation would affect the viability of the employer’s enterprise. It is therefore not a matter which, in this case, warrants adjustment to the provisional amount. 22

6. Section 392(2)(b) - length of service

[23] Dr Debbie’s length of service with Mallee Track was 4 years and 10 months.

7. Section 392(c), (e) and (f) - remuneration likely to have been received and any other remuneration earned

[24] In the previous decision, it was found that, had Dr Debbie not been dismissed, it was likely that her employment would have continued for a further year. 23 This resulted in a provisional amount of $72,483.32 (gross).24

[25] As there was no other remuneration earned, or likely to be earned, the provisional amount of $72,483.32 (gross) remains unchanged.

8. Section 392(2)(d) - mitigation efforts

[26] As set out in the previous decision 25 and also in paragraph [15] above, I am satisfied that Dr Debbie has made reasonable efforts to mitigate her loss.

9. Section 392(2)(g) - other matters

[27] It is proposed to make a deduction of 20% for contingencies. 26 This results in a provisional amount of $57,986.66 (gross).

10. Section 392(3) - misconduct

[28] This section is not relevant in this matter.

11. Section 392(5) - compensation cap

[29] Since the provisional amount of compensation of $57,986.66 is more than the compensation cap in section 392(5) of the Act ($36,241.66), it is necessary to reduce the provisional amount of compensation to that of the compensation cap - $36,241.66.

12. Section 393 - instalments

[30] As there were no submissions that any amount of compensation should be subject to payment by instalments, no finding to this effect needs to be made.

Conclusion

[31] Therefore, it is considered appropriate to make an order that Mallee Track pay $36,241.66 (gross), less taxation as required by law, in compensation to Dr Debbie Obatoki in lieu of reinstatement, within 21 days of the date of this decision.

[32] An order 27 to this effect will be issued separately.

Written submissions:

Applicant, 12 August 2015

Respondent, 17 August 2015

Applicant, 18 August 2015

 1   [2015] FWC 3089

 2   Ibid at [90]

 3   Submissions on behalf of the Applicant, email from Dr Victor Obatoki dated 12 August 2015

 4   Submissions in reply on behalf of the Applicant, email from Dr Victor Obatoki dated 18 August 2015

 5   Submissions on behalf of the Applicant, email from Dr Victor Obatoki dated 12 August 2015

 6   Ibid

 7   Ibid

 8   Submissions in reply on behalf of the Applicant, email from Dr Victor Obatoki dated 18 August 2015

 9   Submissions on behalf of the Applicant, email from Dr Victor Obatoki dated 12 August 2015

 10   Ibid

 11   Submissions on behalf of the Respondent, email from Mr Tallboys dated 17 August 2015

 12   Ibid

 13   Ibid

 14   Ibid

 15   Ibid

 16   [2015] FWC 3089 at [88]

 17   Ibid

 18   Ibid at [89]

 19   Submissions on behalf of the Applicant, email from Dr Victor Obatoki dated 12 August 2015

 20   Ibid and Submissions in reply on behalf of the Applicant, email from Dr Victor Obatoki dated 18 August 2015

 21   [2015] FWC 3089 at [94]

 22   Ibid at [83]

 23   Ibid at [87]

 24   Ibid at [88]

 25   Ibid at [89]

 26   Ibid at [94]

 27   PR572533

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