Eric Sim v Australian Pilot Training Alliance Pty Ltd
[2022] FWC 2336
•9 SEPTEMBER 2022
| [2022] FWC 2336 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Eric Sim
v
Australian Pilot Training Alliance Pty Ltd
(U2022/1968)
| COMMISSIONER LEE | MELBOURNE, 9 SEPTEMBER 2022 |
Application for an unfair dismissal remedy – determination regarding remedy.
On 22 July 2022 I issued a decision[1] where I found that Mr Eric Sim (the Applicant) was unfairly dismissed. I also determined that I did not have sufficient material before me to consider the appropriate remedy, if any. The Applicant was provided an opportunity to file additional submissions and evidence on remedy and the Australian Pilot Training Alliance Pty Ltd (the Respondent) was given an opportunity to reply. Both the Applicant and the Respondent filed materials. There was a hearing on 2 September 2022 to deal with the further evidence and submissions on the question of remedy.
The relevant provisions of the Fair Work Act 2009 (the Act) pertaining to remedy are contained in s.390:
“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.”
It is also necessary to consider the objects of Part 3-2 of the Act, especially s.381(c) of the Act which provides that an object of that Part of the Act is to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement. The presumption in the legislation is that should a dismissal be found to be unfair, that reinstatement is the primary remedy, and that compensation is a secondary consideration if reinstatement is not appropriate.
In this matter, the Applicant does not seek reinstatement. The Applicant’s evidence is as follows:
“I do not wish to be reinstated to any type of employment with APTA. I have found work elsewhere and I do not have any trust or confidence in APTA. Resuming working with APTA would be extremely uncomfortable for me.”[2]
Having taken that evidence into account, I agree that reinstatement is not an appropriate remedy in the circumstances of this case. Having determined that reinstatement is not appropriate I must consider what compensation, if any, is payable, in lieu of reinstatement.
Compensation
The Act provides for compensation as a remedy for unfair dismissal:
“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.
393 Monetary orders may be in instalments
To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”
The Applicant has lost remuneration as a result of the dismissal. There is no reason apparent that compensation should not be awarded. In all of the circumstances, I consider that the award of some amount of compensation is appropriate in this matter.
In determining the amount of compensation, I must have regard to “all the circumstances of the case” including each of the paragraphs in s.392(2) of the Act as set out above. No one matter is paramount, but regard must still be had to each of them.[3] The general approach to the calculation of compensation was well set out by the Full Bench in Tabro Meat Pty Ltd v Kevin Heffernan[4] and I will follow that approach in determining this matter.
I note that in the decision on the merits of this matter issued on 22 July 2022, I found that the Applicant was a credible witness overall and I had no reason to doubt his evidence. The Applicant’s evidence in respect to the matters going to remedy was also credible and for the most part unchallenged and I see no reason not to continue to accept his evidence as credible.
Section 392(2)(c) - the remuneration that the person would have received or would have been likely to receive, if the person had not been dismissed
In his witness statement, the Applicant states that:
“I started employment with the Australia Pilot Training Alliance (APTA) as an instructor in mid-February 2020. This was initially as a casual employee. In May 2020, my employment became part time and on 16 November 2020 I became a full time employee.”[5]
The Applicant included a copy of his contract with the Respondent. Furthermore, the Applicant submits that at the time of dismissal, he was employed pursuant to a contract of employment which provided for an annual salary of $44,871.[6]
The Applicant submits that the annual salary that he was paid did not meet the minimum salary contained in the Air Pilots Award 2020 (the Award) as it was at the time of the Applicant's dismissal, being 25 January 2022. The Applicant’s evidence is that he flew several types and variants of single engine aircraft during his employment. The largest of these had a maximum take off weight of 1,406kg. The Respondent is a general aviation operator. Accordingly, the Applicant submits that Schedule A of the Award applies.[7] Furthermore, the Applicant submits that:
“Given the above information, the Applicant was entitled to a minimum salary of $48,787 per annum under the Award at the time of his dismissal. This amount should be used to calculate any remedy under section 392 of the FW Act.
To use the amount provided for in the contract of employment which does not meet the minimum salary contained in the Award would result in a perverse outcome.”[8]
The Respondent did not challenge the claims of the Applicant that he was entitled to an annual salary of $48,787 per annum pursuant to the Award. I have considered the evidence and agree that the Applicant was entitled under the Award to be paid the amount of $48,787 per annum. I also agree it is appropriate that this is the amount that should be used as the basis for the calculations. It is appropriate to use the amount which the employee was entitled to be paid.
The amount of $48,787 per annum will be used as the basis for the calculation of the amount the Applicant would have received or would likely to have received had it not been for the dismissal.
The Respondent did not make any submissions directly relevant as to how long it was expected the employment relationship would have continued were it not for the dismissal taking place. The submissions of the Respondent did make claims to the effect that the Applicant had commenced working for another employer some time prior to March 2022. This proposition was put to the Applicant in his evidence in chief and he refuted the claim in clear terms.[9] He was not challenged on that evidence. I accept the Applicant’s evidence on that point.
The Applicant’s evidence is that he commenced alternative employment on 8 March 2022 and that:
“During my employment I was not aware of any issues being raised with my performance of my duties until I was summarily dismissed.”[10]
There is no challenge to that evidence, and I accept that evidence.
In the circumstances, the Applicant submits that he would have remained employed until at least 8 March 2022,[11] when he commenced work with his new employer, and that this is the appropriate date to use for the purpose of calculating the amount of income he would likely have earned had he not been dismissed. The evidence supports a finding that the Applicant would have remained employed, but for the dismissal, until at least 8 March 2022. I agree that this is the appropriate period to use for the purposes of the calculation.
The period from the Applicant's dismissal on 25 January 2022 to 8 March 2022 is 41 days. This means that, in that period, the Applicant could have expected to earn $5,480.00, plus superannuation.
I think it is reasonable to assume that, but for the dismissal, that in all the circumstances the employment relationship would have continued for a further period of 41 days, consistent with the submissions of the Applicant.
Accordingly, I calculate the remuneration that the Applicant would have received or would have been likely to receive if his employment had not been terminated as $5,480.00, plus 10% superannuation.
Section 392(2)(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 s.392(2)(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
In the circumstances of this matter, ss.392(2)(e) and 392(2)(f) of the Act can be dealt with together. From 8 March 2022, the Applicant obtained full-time employment with Learn to Fly Australia Pty Ltd. The Applicant does not seek compensation beyond that date. The Applicant’s sworn evidence, which I accept as truthful, is that he did not earn any remuneration for the 41 days between his dismissal and 8 March 2022.
Therefore, there is no amount that should be deducted from the $5,480.00 plus superannuation, which the Applicant would have earned had he remained employed. This deduction results in an amount of compensation of $5,480.00, plus 10% superannuation.
Section 392(2)(g) – any other matter that the FWC considers relevant
The impact of contingencies needs to be considered at this point. Contingencies only apply to the anticipated period of employment.[12] As there is no anticipated period of employment that is not actually known, a deduction for contingencies is not appropriate.
There is no reduction in the provisional amount of compensation of $5,480.00 plus 10% superannuation. There are no other matters that are relevant to the determination of compensation other than ss.392(2)(a), (b) and (d), 392(3) and 392(5) of the Act. I will turn to those factors now.
Section 392(2)(a) - the effect of the order on the viability of the employer’s enterprise
With respect to s.392(2)(a) of the Act, there has been no evidence led to suggest that any award of compensation will affect the viability of the Respondent. The Respondent has made submissions without supporting evidence, as to claimed issues attributable to the Applicant and a “loss of shareholder support”. Further, that the Australian Federation of Air Pilots’ aim is to “destroy the company”. These claims are without evidence and are not accepted. There is no evidence demonstrating a likely effect that an order for compensation will have on the business. There is no basis to alter the amount of compensation taking into account this factor.
Section 392(2)(b) - the length of the persons service with the employer
Addressing s.392(2)(b) of the Act, the Applicant was employed by the Respondent for a relatively short period of time, being 23 months. However, he submits that no deduction in respect of this is appropriate as there is nothing to indicate that the employment period of 23 months should reduce the amount sought by way of remedy, and it is submitted that the Commission should not make any reduction on this ground.[13] I agree with these submissions and no further deduction is warranted in these circumstances.
Section 392(2)(d) - the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
In respect of s.392(2)(d), it is submitted the Commission should consider the extremely diligent efforts of the Applicant to mitigate his loss in finding new employment. I agree the Applicant’s mitigation efforts are considerable. He immediately looked for and secured further employment. This is sufficient to exclude any further deduction from the quantum of compensation calculated.
Section 392(3) - misconduct
I have found that the Applicant was not dismissed for a valid reason and that no misconduct was in evidence. Therefore, there is no basis to make a further deduction for misconduct.
Section 392(5) - compensation cap
As the amount of $5,480.00, plus 10% superannuation is less than the legislative compensation cap. No further deduction for that reason is required.
There are no other considerations to be taken into account. I consider the amount calculated of $5,480.00 to be appropriate in all the circumstances of the case.
Conclusion and order as to remedy
I find that reinstatement is not an appropriate remedy in this case. I find that compensation is appropriate.
I am satisfied that an order for payment of compensation by the Respondent of $5,480.00 gross plus 10% superannuation, less taxation as required by law, to the Applicant in lieu of reinstatement is appropriate in all the circumstances of the case. It accords a fair go all round to both the Respondent and the Applicant.
The compensation payment, less any required deduction in taxation, is to be made within 14 days of this decision. An order to that effect will be issued concurrently with this decision.[14]
COMMISSIONER
M Molnar for the Applicant.
N Qushair, Respondent.
Hearing details:
2022.
Melbourne (Microsoft Teams):
September 2.
[1] [2022] FWC 1843.
[2] Applicant’s Witness Statement dated 10 August 2022 at [7].
[3] Tempo Services Limited v Klooger and Others PR953337 at [22].
[4] [2011] FWAFB 1080.
[5] Applicant’s Witness Statement dated 10 August 2022 at [1].
[6] Applicant’s Outline of Submissions dated 10 August 2022 at [4].
[7] Ibid at [5]-[6].
[8] Ibid at [7]-[8].
[9] Transcript at PN31.
[10] Applicant’s Witness Statement dated 10 August 2022 at [3].
[11] Applicant’s Outline of Submissions dated 10 August 2022 at [10].
[12] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001) at para. 39; citing Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at para. 43.
[13] Applicant’s Outline of Submissions dated 10 August 2022 at [14].
[14] PR745447.
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