Efford v Bte Technology
[2016] FWC 657
•16 February 2016
[2016] FWC 657
DECISION
| Fair Work Act 2009 | |
| s.394 - Application for unfair dismissal remedy | |
| Mr Michael Efford | |
| v | |
| BTE Technology | |
| (U2015/12374) | |
| SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 16 FEBRUARY 2016 |
Summary – unfair dismissal application under s.394 – dismissal found to be unfair –
remuneration earned since dismissal exceeds salaried earnings since dismissal – future likely
earnings – whether order for compensation is appropriate – necessity to weigh factors in
s.392(2) for the purposes of s.390(3)(b) – no order for remedy issued as a matter of discretion
– both actual and prospective post-employment earnings must be taken into account.
[1] This decision concerns an application by Mr Michael Efford under s.394 of the Fair
Work Act 2009 (“the Act”) by which he seeks an unfair dismissal remedy in respect of his
alleged termination from BTE Technology (“the company”) on 30 September 2015. Mr
Efford’s employer was Mr Travis Kerr, the owner of BTE Technology.
[2] Mr Efford had performed duties as a computer technician for the company since 2009.
The company was a particularly small business comprising some three persons (at most) and
operating out of Mr Kerr’s private premises. The company provided computer repair and
maintenance related services to residential and commercial customers on a callout basis.
[3] I add at this juncture that Mr Kerr did not appear at the hearing to defend his interests.
Mr Kerr did not provide any materials in reply of any substance or attend an earlier directions
conference.
[4] On 25 January 2016 I wrote to Mr Kerr in the following terms addressing Mr Kerr’s
reluctance to become involved in the proceedings:
“Dear Mr Kerr
Thank you for your email.
Senior Deputy President Richards writes as follows:
I understand that parties can find applications such as this a source of
annoyance and frustration, especially when they arise at a time at which other
matters are affecting their lives.
[2016] FWC 657
But for all of that, I must apply the legislation that the Parliament has enacted.
This means – other than where parties voluntarily settle their disputes at an
earlier time – I must determine the application by hearing (in this instance).
If you don’t attend the hearing or make any submissions or provide any
evidence in your defence, I will need to make findings on the basis of the
Applicant’s materials only.
To be clear, the matter will proceed to arbitration hearing as listed on Monday
1 February 2016 at 10am in Brisbane. I would encourage you to engage in the
process to defend your own interests.
I note that the business is said to have ceased to operate. That, however, will
not have any affect on the hearing or any order that I make (other than in
respect of reinstatement as a practical remedy).
In light of the above:
(a) will you be attending next Monday’s hearing and providing evidence in the
employer’s defence?
(b) do you not wish to participate in a preliminary conference to consider if
there is a prospect of settlement short of the hearing? If you do not wish to
participate in this preliminary conference by telephone on Wednesday, it will
be cancelled.
Kind regards […]”
[5] A directions conference was conducted on 27 January 2016. Mr Kerr, once again, did
not attend the conference. The following day, 28 January 2016, I wrote to Mr Kerr, once
more, in the following terms:
“Dear Mr Kerr and Mr Efford
Re: U2015/12374 - Efford, Michael v BTE Technology
Though acknowledging the opportunity, Mr Kerr declined to participate in the
directions conference conducted yesterday. The conference did not proceed as a
consequence.
As the parties appreciate, the hearing on Monday 1 February 2016 will proceed as
listed, however by telephone.
Both parties will be contacted at 10am on their mobile telephone numbers. If Mr Kerr
again indicates that he will not participate in the matter (or does not answer his phone),
the hearing will proceed in the absence of the Respondent.
The Applicant’s evidence and submissions will be heard at this time. If the
Respondent (Mr Kerr) decides to participate, his evidence in defence of the application
[2016] FWC 657will be taken orally if necessary (given no materials of any substance have been filed
to date).
Following the hearing, the Commission will then make a determination regarding the
application, on the basis of the materials on the file and the evidence heard on the day.
If the Commission finds in favour of the Applicant, it may make an order for a
remedy, which may include compensation.
Once again, the Senior Deputy President encourages the Respondent/Mr Kerr to attend
(telephone attendance) in order to defend his interests.
Kind regards”
[6] On the day of the hearing, attempts were made to contact Mr Kerr but he did not
respond to telephone calls made to his usual telephone number. The hearing therefore
proceeded on the basis of the evidence given alone by Mr Efford and without regard to Mr
Kerr’s perspective or commentary.
[7] Mr Kerr, I do add, had indicated in correspondence passing between the parties that
his small business (comprising at most 3 persons and operated from his home) had been
closed owing to a marital dispute and separation. The business was said to be indebted.
Consideration pursuant to s.387 of the Act
[8] Section 387 of the Act sets out the criteria for considering whether a dismissal was
harsh, unjust or unreasonable. Section 387 is 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:
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)
[9] Mr Efford’s unchallenged evidence was that he was dismissed on Wednesday 30
September 2015 by Mr Kerr. The reason for Mr Kerr having dismissed Mr Efford appears to
have been that Mr Kerr had been in an elevated state of mind arising from what appears to be
a domestic dispute with his (Mr Kerr’s) wife (who perform duties as the receptionist for the
company). It appears that Mr Kerr dismissed Mr Efford because Mr Efford did not always
answer his mobile phone when he was contacted. The email and other exchanges between Mr
Kerr and Mr Efford suggest that Mr Kerr came to the belief that he had acted hastily and
harshly in relation to Mr Efford’s dismissal, perhaps owing to his wider non-work-related
circumstances.
[10] The email and other exchanges between Mr Kerr and Mr Efford also appear to
demonstrate that Mr Kerr conceded that he dismissed Mr Efford on Wednesday 30 September
2015 (despite a subsequent letter of termination on 6 October 2015 citing an operational
reason (business closure) for the decision to dismiss Mr Efford – see further below). There is
also incidental conduct such as references in Mr Efford’s electronic work calendar to the
[2016] FWC 657
effect that Wednesday 30 September 2015 was his last day of work. It is inferred that Mr Kerr
inserted this information into the work calendar.
[11] No issue of conduct or performance was evident in the materials before me. There is
some suggestion that Mr Kerr may have suspected Mr Efford of conducting a business of his
own which was accessing the company’s clients. Upon questioning by myself, Mr Efford
denied such conduct and in any event it was not made out on the evidence before me.
[12] As far as I was able to adduce it, there was no valid reason for the dismissal of Mr
| Efford. |
Whether the person was notified of that reason
[13] Mr Efford was not notified of the reason for his dismissal at the time he was dismissed
(which was Wednesday 30 September 2015). The termination letter of 6 October 2015 is not
the notice which is applicable to the dismissal itself. The termination letter is a subsequent
construction of the circumstances of the dismissal and does not constitute notice.
Whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person
[14] Mr Kerr did not give Mr Efford an explanation for his decision to dismiss him on
Wednesday 30 September 2015, or any opportunity to respond to the dismissal.
Any unreasonable refusal by the employer to allow the person to have a support person
present to assist at any discussions relating to dismissal
[15] The circumstances of the dismissal did not give rise to a situation in which Mr Efford
was subject to any dismissal discussions of any formal kind.
If the dismissal related to unsatisfactory performance by the person—whether the
person had been warned about that unsatisfactory performance before the dismissal
[16] This is not a matter in which it is at all obvious that there was any performance based
concern behind Mr Kerr’s decision to dismiss Mr Efford.
The degree to which the size of the employer’s enterprise would be likely to impact on
the procedures followed in effecting the dismissal
[17] The company is a small company (in actuality it may be a sole trader) and employed at
the most three persons. I say this because I do not know whether Mr Kerr and his wife who
performed the role as a receptionist were themselves employees or co-owners. Given the
nature of the business, the fact that it operated out of a domestic residence and had so few
staff resources, I reasonably infer that the size of the employer’s enterprise impacted on the
procedures used in effecting the dismissal. That is, rather than Mr Kerr’s decision-making
being subject to any procedural conduit, Mr Kerr appears to have acted on personalised
motivations and without regard to procedural fairness.
[2016] FWC 657
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
[18] It is similarly the case that the absence of dedicated human resource management
specialists in the business meant that there was little regard to formality and procedural
fairness in effecting the dismissal.
Any other matters that the FWC considers relevant.
[19] There are no other relevant considerations.
Conclusion
[20] On the materials before me, I am satisfied that Mr Efford’s dismissal was harsh, unjust
and unreasonable.
[21] As a consequence of having so found, I will consider the appropriate remedy.
REMEDY
[22] Section 390 of the Act reads as follows:
Division 4—Remedies for unfair dismissal
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.
Note: Division 5 deals with procedural matters such as applications for remedies.
[23] Mr Efford is a person protected from unfair dismissal for the Act’s purposes, and is a
person who has been unfairly dismissed. Accordingly, I am empowered to exercise a
discretion as to whether he can be reinstated. Section 391 of the Act provides as follows:
[2016] FWC 657
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.
[24] In the circumstances of this matter it is not appropriate that Mr Efford be reinstated or
reemployed with the employer. Mr Efford does not seek to be so reinstated in any event.
Reinstatement or reemployment would yield an unproductive result if Mr Efford’s wishes in
this regard were disregarded. There is also a suggestion that BTE Technology no longer
trades and may have been sold. But there is no direct evidence to this effect.
[2016] FWC 657
[25] Having so found, I now need to determine - in accordance with s.390(3)(b) of the Act -
whether an order for payment of compensation is appropriate in all the circumstances of the
case.
[26] Section 390(3)(b) of the Act serves as a prerequisite to the exercise of the conditioned
discretion to determine the quantum of compensation that an employer must pay to the person
in lieu of reinstatement. The prerequisite to the exercise of that discretion is that the
Commission reaches a state of satisfaction that an order for compensation is appropriate in all
the circumstances of the case.
[27] The Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages
Inc. T/A Ottrey Lodge [2013] FWCFB 431 held that this state of satisfaction could only be
arrived at by considering all the circumstances of the case, and this meant that the range of
matters set out a s.392(3) of the Act needed to be considered (though it will be noted that the
Full Bench included ultimately in its decision additional consideration of s.393 of the Act):
[16] It is further apparent that a FWC decision to order the payment of compensation
to a person is also a discretionary decision, but is only exercisable if, amongst other
things, the FWC is satisfied reinstatement of the person is inappropriate and the FWC
considers a compensation order is appropriate in all the circumstances of the case.
[…]
[40] As to whether an order for the payment of compensation by Ottrey to Ms Bowden
is appropriate in all the circumstances of the case, we note that the phrase “all the
circumstances of the case” in s.390(3)(b) of the FW Act is also contained in s.392(2).
However, in s.392(2) the phrase is followed by a reference to the matters in
ss.392(2)(a) to (g) and s.392(2)(g) concerns “any other matter that the FWC considers
relevant.” In this case, we think the matters in ss.392(2)(a) to (g) embrace all the
circumstances of the case relevant to our consideration of whether a compensation
order is appropriate. In Henderson v Department of Defence it was recognised that
the same matters may serve different purposes in s.170CH of the WR Act, as it was
prior to the Work Choices amendments. A Full Bench of the AIRC said:
“[20] It is correct that, if the Commission decides to order an amount in lieu
of reinstatement, regard would have to be had to the same matters for the
purpose of determining the amount to be ordered. But that involves having
regard to these matters for a different purpose. In s.170CH(2) the purpose of
the inquiry is to ascertain which remedy or remedies, if any, are appropriate.
In s.170CH(7) the purpose of the inquiry is to ascertain the amount to be
awarded in lieu of reinstatement. If it were otherwise s.170CH(7) would be
redundant.”
[41] We turn then to the matters for the purpose of considering whether an order for
the payment of compensation by Ottrey to Ms Bowden is appropriate in all the
circumstances of the case.
[42] There is no sound basis to conclude an order for the payment of compensation
would affect the viability of Ottrey’s enterprise. The effect of such an order on Ottrey’s
viability does not militate against such an order. Ms Bowden’s length of service with
[2016] FWC 657
Ottrey was some four years. This is a period supporting such an order. The
remuneration Ms Bowden received, or would have been likely to receive, if she had
not been dismissed and her mitigation efforts at Yooralla and in her small business
support an order for the payment of compensation. We concur with the Commissioner
that Ms Bowden would have worked for Ottrey for at least another six months but for
her dismissal. The amount of remuneration earned by her from employment or other
work and the income reasonably likely to be so earned by her are not such as to
militate against such an order. The matter of contingencies does not militate against
such an order in this case, particularly given the period she would have worked for
Ottrey but for her dismissal has long passed. However, the misconduct of Ms Bowden
that contributed to Ottrey’s decision to dismiss her, as set out in the Commissioner’s
first decision, does go against an order for the payment of compensation. There are no
other matters that we consider are relevant to the circumstances of the case for the
purpose of considering whether a compensation order is appropriate.
[43] In our view, the matters supporting an order for the payment of compensation
outweigh that going against such an order, leading us to consider that an order for the
payment of compensation by Ottrey to Ms Bowden is appropriate in all the
circumstances of the case.
[28] It is noted here that the Full Bench’s approach required it to evaluate and give weight
to the “amount of remuneration earned [by the Applicant] from employment or other work
and the income reasonably likely to be so earned by her” for the purposes of reaching the
requisite state of satisfaction that an order for compensation be made.
[29] In the case before it, the Full Bench did not find that the Applicant’s earnings,
including prospective earnings were of such a magnitude as to militate against the making of
an order for compensation.
[30] The circumstances in relation to prospective earnings is a relevant consideration in
mitigation for the current purposes under s.390(3)(b) of the Act (or else as a contingency
when determining the quantum of any order for the purposes under s.392(2) of the Act). I will
turn to this matter further below.
[31] As to whether I am satisfied that in all the circumstances an order for compensation
should be made, I now turn to examine what the full bench cited above has held to constitute
those circumstances – the various criteria set out at s.392(2) of the Act (and s.393 of the Act).
[32] Section 392 of the Act provides as follows:
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
[2016] FWC 657
(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
(b) the length of the person’s service with the employer
(c) the remuneration that the person would have received, or would have been
likely to receive, if the person had not been dismissed
(d) the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal
(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
(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
(g) any other matter that the FWC considers relevant.
[33] Section 392(3) of the Act provides as follows:
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.
[34] As the employer has decided not to provide evidence in defence of its own interests in
this matter I have before me no facts as to the status of the employer’s business. There is
some reference in exchanges between the parties to the assertion that the employer no longer
operates its business, but there is no evidence to this end. In such circumstances I can only
conclude that any order that I might make will not jeopardise the viability of the employer’s
business.
[35] The effect of an order for compensation in this respect does not militate against such
an order.
[36] Mr Efford’s length of service with the employer was some four years. This is a period
supporting such an order.
[37] The remuneration Mr Efford received, or would have been likely to receive, if he had
not been dismissed, does not militate against the making of an order.
[38] Mr Efford’s mitigation efforts in establishing a business of his own do not militate
against the making of an order for the payment of compensation.
[2016] FWC 657
[39] Further, there was no misconduct on Mr Efford’s part that is evident, and this therefore
does not militate against making an order for compensation.
[40] The amount of remuneration earned by Mr Efford from employment or other work and
the income reasonably likely to be so earned by him are matters, however, that do militate
against making an order for compensation.
[41] It is necessary to take into account actual and, where relevant, prospective earnings,
over the period of anticipated employment. In Bresatz v Przibilla (1962) 108 CLR 541,
Windeyer J commented as follows in relation to contingencies of both a negative kind (which
reduce the likelihood of earnings) and a positive kind (which increase the likelihood of
earnings) to the award of compensation for damages:
3. Turning then to the first head commonly called loss of future earnings - a common
method of estimating the loss of prospective earnings is to take the annual earnings at
the date of the accident and multiply this by the number of prospective working years
lost. Then it is said "the resulting amount must then be scaled down by reason of two
considerations, first that a lump sum is being given instead of the various sums over
the years, and second that contingencies might have arisen to cut off the earnings
before the period of disability would otherwise have come to its end": Mayne &
McGregor, Damages (1961) p. 767. The first of the two considerations mentioned
does, of course, in every case demand that the product of the initial multiplication
must be discounted at some assumed rate of interest to ascertain the present value of
the notional future earnings. Nothing here turns upon the individual. This "scaling
down" is a mere process of arithmetic applicable to all cases; and there are tables
from which the result is readily ascertainable. But the second consideration is
altogether different. It is a mistake to suppose that it necessarily involves a "scaling
down". What it involves depends, not on arithmetic, but on considering what the future
might have held for the particular individual concerned. He might have fallen sick
from time to time, been away from work and unpaid. He might have become
unemployed and unable to get work. He might have been injured in circumstances in
which he would receive no compensation from any source. He might have met an
untimely death. Allowance must be made for these "contingencies", or the "vicissitudes
of life" as they are glibly called. But this ought not to be done by ignoring the
individual case and making some arbitrary subtraction. We were told that in South
Australia it is a common practice to subtract twenty-five per cent "for contingencies".
Indeed counsel for the appellant, in the calculations he made in support of his claim
for higher damages, conceded that this should be done. But he did not explain why. I
know of no reason for assuming that everyone who is injured and rendered for a
period unable to work would probably in any event have been for a quarter of that
period out of work, or away from work and unpaid. No statistics were presented to
justify this assumption. Moreover, the generalization, that there must be a "scaling
down" for contingencies, seems mistaken. All "contingencies" are not adverse: all
"vicissitudes" are not harmful. A particular plaintiff might have had prospects or
chances of advancement and increasingly remunerative employment. Why count the
possible buffets and ignore the rewards of fortune? Each case depends upon its own
facts. In some it may seem that the chance of good fortune might have balanced or
even outweighed the risk of bad. With these considerations in mind I turn to the
element of loss of future earnings in this case and to what the learned trial judge said
on this aspect.
[2016] FWC 657
[42] The judgment of Windeyer J is commented upon favourably by the High Court in its
judgment in Wynn v NSW Insurance Ministerial Council (1995) 133 ALR 154, which itself is
quoted favourably in Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross
VP, Williams SDP, Gay C, 17 April 2000 Print S5109), which itself noted that included in the
scope for contingencies were:
“positive considerations which might have resulted in advancement and increased
earnings are also taken into account”
[43] In Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080, a Full Bench of (what was
then) Fair Work Australia took into account the possibility of prospective earnings (where the
Applicant concerned had obtained a temporary employment position only following
dismissal) in reducing the amount to be awarded by 25% as a result of uncertainty as to the
extent of ongoing unemployment.
[44] Demonstrably, the likelihood of prospective earnings is a matter that is taken into
account for purposes of determining the amount the Commission may order that an employer
pay a person. Equally, the extent of such prospective earnings must form a criterion to be
taken into account when determining whether it is appropriate to make an order for
compensation itself.
[45] In this particular case, had Mr Efford not been dismissed he would in all likelihood
have been employed for 12 months with his employer. His earnings in this regard would have
amounted to $39,500.00.
[46] In the period following his dismissal (from 30 September 2015 to 10 February 2016 -
being approximately a 19 week period), Mr Efford earned on the advice he has given me
following the hearing some $28,226.17 (gross). This amount is after GST and business costs
have been deducted. In effect, therefore, in the approximate 19 week period following his
dismissal, Mr Efford earned in mitigation some $28,226.17, whereas his annual salary with
BTE Technology amounted to $39,500.
[47] Mr Efford’s earnings since the dismissal to the time of making any order will surpass
any earnings from his prior employment. Mr Efford’s prospective earnings, even if discounted
for contingencies that may affect him by way of the ordinary range of vicissitudes of life, are
in all reasonable likelihood to exceed his earnings had he remained in employment with his
former employer.
[48] The compensation required to be paid under the Act is not a payment for other
personal “damages”. Section 392(4) of the Act, in this respect, provides as follows:
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.
[49] Whilst a range of the criteria under s.392(2) of the Act do not militate against the
making of an order for compensation, I do consider that Mr Efford’s known and likely
[2016] FWC 657
earnings to be of a such an amount as to cause me, on balance, to exercise my discretion so as
not to make an order for compensation.
[50] I reach this view with some care, having noted that while Mr Efford’s likely
prospective earnings would need to be reduced on the basis of contingencies, the
contingencies relevant to Mr Efford’s earnings reasonably might well be in the lower order.
This is because Mr Efford is his own employer, and he might not be subject to losing his job
(other than by a down turn in his hitherto stable residential services related business which is
unrelated, for example, to unstable commodity markets). Mr Efford would also be less likely
to lose earnings through industrial action and the other ordinary considerations relevant to
contingencies as a sole trader (as it would appear).
[51] I also note that as was found in Sprigg v Paul’s Licensed Festival Supermarket (1998)
88 IR (at page 33) above, I also find no reason to add to, or to detract from, the amount based
on total remuneration lost for any other matter under s.392(2)(g) of the Act. There is no
deduction to be made under s.392(3) of the Act. I note that Mr Efford was not paid his notice
upon dismissal, but that, along with redundancy, is not a matter that is relevant to a
consideration as to whether an order for remedy should be made, as there are other intended
avenues by which a person may seek to recover such statutory payments.
[52] A similar sentiment in this respect was expressed by a Full Bench of the Commission
([2016] FWCFB 922) in relation to whether an application under s.394 of the Act could
provide a means for recovery of entitlements otherwise available under the Act or under an
award:
“The only contention advanced before us as to why the dismissal was unfair was that
Ms Dale was not afforded her entitlements under “the Act and the Award”, and that
she should be compensated for this. It appears that this is a reference to notice
payments and redundancy pay benefits. […] We do not propose to express a view as to
whether the circumstances of Ms Dale’s dismissal gave rise to any entitlement to
redundancy pay benefits because we do not consider that the unfair dismissal
provisions of the FW Act are properly to be used as a substitute mechanism for the
recovery of monetary entitlements under the FW Act or a modern award. If Ms Dale
believes she has an entitlement to redundancy pay, then she should make an
appropriate application to a relevant court for the recovery of this entitlement. We do
not regard this as a matter relevant to whether Ms Dale’s dismissal was unfair in
circumstances where her dismissal is not now alleged to be unfair on any other
basis.” [My emphasis] [2016] FWCFB 922 PN 38.
CONCLUSION IN RELATION TO REMEDY
[53] Whilst I have found that Mr Efford was harshly unjustly and unreasonably dismissed
from his employment with BTE Technology, as a matter of discretion on the basis of the
reasons given above no order for remedy will be made in the current circumstances as I do not
consider it appropriate to do so (for the purposes of s.390(3)(b) of the Act). Particular
amongst the reasons for so finding is that Mr Efford’s earnings post-employment - both
known and prospective - well exceed those whilst as an employee with BTE Technology. It
would appear to me that such an outcome in the circumstances represents a fair go all around
for the Act’s purposes.
[2016] FWC 657
SENIOR DEPUTY PRESIDENT
Appearances:
M. Efford, Applicant
No appearance for the Respondent
Hearing details:
By telephone
2016
1 February
Printed by authority of the Commonwealth Government Printer
<Price code C, PR576615>
2
4
0