Farzana Khan v Oakleigh Fruit Barn
[2019] FWC 3458
•22 MAY 2019
| [2019] FWC 3458 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Farzana Khan
v
Oakleigh Fruit Barn
(U2019/774)
DEPUTY PRESIDENT MASSON | MELBOURNE, 22 MAY 2019 |
Application for an unfair dismissal remedy.
Introduction
[1] On 25 January 2019, Ms Farzana Khan (the Applicant) made an application pursuant to s 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of her dismissal by Zouxiang Pty Ltd t/a Oakleigh Fruit Barn (the Respondent). The application indicated that the date that the Applicant’s dismissal took effect was 6 January 2019.
[2] The Applicant, in filing her Form F2 application on 25 January 2019, identified the contact person for the Respondent as Mr Darren Darren. The Respondent failed to file a Form F3 Employer Response form to the application despite various attempts by the Commission to contact it by telephone, email and sms messaging.
[3] The matter was listed for conciliation before a Fair Work Commission Conciliator on 26 February 2019. In advance of the conciliation conference, the Respondent was contacted by telephone by Commission staff on 25 February 2019 during the course of which telephone call, Mr Darren advised that he had not received any information from the Commission. The Commission staff member subsequently forwarded the relevant documentation to the Respondent which Mr Darren confirmed receipt of. Mr Darren also confirmed his telephone number for the purposes of participating in the conciliation conference.
[4] The conciliation conference which was listed for 26 February 2019 was adjourned and re-listed for 27 February 2019. Attempts to contact the Respondent for the conciliation conference on 27 February 2019 were unsuccessful and as a consequence the conciliation conference did not proceed. The parties were subsequently advised by the Commission on 7 March 2019 that the matter would proceed to hearing.
[5] On 12 March 2019, a notice of listing for the hearing and directions for the filing of materials were sent to the parties. The matter was listed for hearing on 21 May 2019 and the Respondent was required to file its materials on or by the close of business 23 April 2019.
[6] The Respondent failed to file any materials by 23 April 2019. Various attempts were then made by Commission staff to contact the Respondent by telephone, email and sms messages on 24 and 29 April 2019 in relation to its failure to file materials. No response was received from the Respondent.
[7] On 6 May 2019, correspondence was sent to the Respondent by my Associate advising that the matter had been allocated to me and would proceed to hearing as listed on 21 May 2019. The Respondent was requested to contact my Chambers as a matter of urgency in light of no materials having been filed by it. Further telephone messages were left by my Associate with the Respondent on 7 May 2019 and again on 20 May 2019.
[8] Despite various and repeated attempts by Commission staff and my Associate to contact the Respondent, no Form F3 response was received. Nor were any materials filed by the Respondent in accordance with the directions issued.
[9] The Applicant represented herself at the hearing on 21 May 2019 accompanied by her husband and son. The Respondent failed to attend the hearing. Taking into account the circumstances of the Applicant as a self-represented party and the failure of the Respondent to attend the proceedings, I determined to conduct a conference pursuant to s 398 of the Act.
[10] I am satisfied that the Respondent’s failure to engage with the Commission is not explained by its lack of awareness of the application filed by the Applicant. Rather, it is due to the Respondent’s apparent decision not to participate in the proceedings before the Commission. Numerous attempts have been made by Commission staff, including my Associate, to contact the Respondent regarding the proceedings by telephone, sms and email correspondence.
[11] I am further satisfied that the Respondent has been made aware of this matter, has had ample time and opportunity to respond to the application but has made a conscious decision not to do so. Consequently, I intend to treat the application as uncontested.
Background and evidence
[12] The Applicant states that she commenced employment at the Oakley Fruit Barn on 2 October 2017 working part-time as a cashier/sales assistant with her weekly hours varying according to the roster. She states she was paid $13.00 per hour and although her hours of work were subject to some variations, her normal hours were 29 hours per week. No written contract of employment was provided to her. She also states that approximately one month before her dismissal her hours were reduced significantly.
[13] The Applicant states that during her employment at the Oakleigh Fruit Barn, her actual employer changed in April 2018 from a company called Great Dragon International to the Respondent. The Applicant’s 2017/2018 PAYG Payment Summary 1 and personal bank statements2 confirmed the change in employer from Great Dragon International to Zouxiang Pty Ltd (i.e. the Respondent) on or about 1 April 2018.
[14] The Applicant gave further evidence that at the time of the transfer of the business in April 2018, all of the then employees of the previous owner moved across to the Respondent, and in her case on the same employment arrangements that had existed prior to the transfer. No formal contracts of employment confirming the transfer of employment or the basis of her employment with the new owner were provided to the Applicant in April 2018.
[15] The Applicant states that at the time of her dismissal there were approximately eight to nine employees working for the Oakleigh Fruit Barn.
[16] The Applicant also states that at the end of her rostered shift on 6 January 2019, she was advised by the owner’s son “Gong” that she could come in for another two weeks and then look for another job. When she asked Gong why she was no longer required, she was advised that the owner, Ms Meifang Chen, was not happy with her. Shortly after this conversation the Applicant left the premises. Later that afternoon, the Applicant states that she was contacted by her Manager “Mr Darren” who advised her that the Respondent was required to provide her with two weeks’ notice.
[17] The Applicant requested a letter from the Respondent confirming her termination of employment and the reasons for such termination. The letter of termination 3 subsequently provided was, according to the Applicant, not provided until some two weeks after her dismissal. The letter from the business owner, Ms Meifang Chen, was dated 7 January 2019 and stated as follows:
“Dear Farzana
Termination of Your Employment
I am writing to you about the termination of your employment with Zuoxiang Pty Ltd t/a Oakleigh Fruit Bar. This decision cannot be changed.
Your employment will end immediately. Based on your length of service, your notice period is two weeks. In lieu of receiving that notice, you will be paid the sum of $770.00.
If you have any questions about this, please contact our office.”
[18] The Applicant gave evidence that she was not given any reason for her termination at the time of or subsequent to her dismissal beyond the statement from Gong that Ms Chen was not happy with her. Nor, the Applicant states, was she given any opportunity to comment on her dismissal or respond to any reasons relied on by the Respondent for such dismissal. She also states that no warnings were issued to her prior to her dismissal regarding any performance or conduct issues.
[19] The Applicant gave evidence 4 that she has applied for various positions since her dismissal but has so far been unsuccessful in securing alternate employment.
[20] The Applicant provided copies of payslips for the period 2 April 2018 to 18 November 2018. 5 In that 38 week period she earned $13,843.00. This represents an average of $407.14 per week.
Initial matters to be considered
[21] I am required by s 396 of the Fair Work Act 2009 (Cth) (the Act) to decide four initial matters before proceeding to consider the merits of the application. Those matters are:
a. Whether the application was made within the period required by s 394(2) of the Act;
b. Whether the Applicant was a person protected from unfair dismissal;
c. Whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
d. Whether the Applicant’s dismissal was a case of genuine redundancy.
[22] I will now deal with each of the initial matters.
Was the application made within the period required by s 394(2) of the Act? (s 396(a))
[23] The Applicant was dismissed (verbally) on 6 January 2019 and I am satisfied that the dismissal took effect on that day. The Respondent confirmed in subsequent correspondence, dated 7 January 2019, that the Applicant’s “employment will end immediately”. The application for an unfair dismissal remedy was then filed on 25 January 2019 which is within the statutory 21 day period required by s 394(2) of the Act.
Was the applicant a person protected from unfair dismissal? (s 396(b))
[24] In order to establish whether the Applicant was a person protected from unfair dismissal it is necessary for me to consider ss 382, 383 and 384 of the Act. I turn first to consider, pursuant to s 382(a), whether the Applicant has completed the minimum employment period of six months (s 383(a)) or one year in the case of a small business employer (s 383(b)).
[25] On the Applicant’s evidence, of which I accept, it is likely that the Respondent employed less than 15 employees at the time of her dismissal. Therefore, the minimum employment period that must be met by the Applicant is that of 12 months. While the Applicant commenced her employment at the Oakleigh Fruit Barn in October 2017, it is evident that her employer changed in April 2018. Based on the termination date of 6 January 2019, it is necessary to determine whether the prior service of the Applicant with Great Dragon International is to be included for the purposes of calculating the Applicant’s minimum employment period with the Respondent.
[26] I am satisfied on the Applicant’s evidence that her employment transferred from Great Dragon International to the Respondent on or about 1 April 2018; she continued to perform the same duties with the Respondent that she had performed with her previous employer; her terms and conditions of employment remained unchanged; and the Respondent had the beneficial use of assets of the former employer in conducting its business. In the absence of any contradictory evidence from the Respondent as to the nature of the business transition that occurred in April 2018, I am satisfied in the circumstances that a transfer of business has occurred within the meaning of s 311 of the Act. Furthermore, there was no evidence that the Applicant was informed in writing before her employment commenced with the Respondent in April 2018 that her prior service with the former employer would not be recognised.
[27] I am consequently satisfied that the Applicant’s prior service with Great Dragon International should be included for the purpose of calculating the Applicant’s period of employment. Inclusion of that prior service results in the Applicant’s period of employment being that of approximately one year and three months. My finding on the Applicant’s period of employment is fortified by the notice period of two weeks paid by the Respondent to the Applicant on her termination, such notice period being consistent with a period of service of more than one year but less than three years, per s 117(3) of the Act.
[28] I am further satisfied based on the Applicant’s description of her duties of cashier/sales attendant, that her employment is covered by General Retail Industry Award 2010.
[29] It follows from the above that as the Applicant is covered by a modern award and has completed a period of employment of at least one year she is a person protected from unfair dismissal.
Was the dismissal consistent with the Small Business Fair Dismissal Code? (s 396(c))
[30] As regards the fourth preliminary matter to be considered, that of whether the Small Business Fair Dismissal Code applies, I am satisfied on the evidence that it is likely that the Respondent is a small business. This finding is based on the Applicant’s evidence, which I accept, that there was approximately eight to nine staff employed by the Respondent at the time of the Applicant’s dismissal. There was no evidence before me that there were any associated entities that should be taken into account for the purpose of calculating the number of employees.
[31] In having found that the Respondent is a small business, there is no evidence on which I can be satisfied that the Respondent believed on reasonable grounds that the Applicant’s conduct was sufficiently serious as to justify immediate dismissal. Nor is there any evidence before me that the Applicant was warned prior to her dismissal that she was at risk of being dismissed due to her conduct or capacity. It follows from these findings that the Respondent has not complied with the Small Business Fair Dismissal Code.
Was the dismissal a case of genuine redundancy? (s 396(d))
[32] The Applicant gave evidence that she was not advised that her role was no longer required and nor was she consulted regarding her dismissal. It follows and I am satisfied that her dismissal was not a genuine redundancy.
[33] Based on the above, I am satisfied that the application was made within the period required by s 394(2) of the Act, the Applicant was a person protected from unfair dismissal, the Small Business Fair Dismissal Code was not complied with and the dismissal was not a genuine redundancy. Having reached these conclusions, I must now turn to consider whether the Applicant’s dismissal was unfair.
Was the dismissal unfair?
[34] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s 385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[35] Having reached my conclusions at paragraph [33] above, I am satisfied that the matter is now confined to a determination of that element contained in s 385(b) of the Act, specifically, whether the dismissal of the Applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable:
“387 Criteria for considering harshness etc.
(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 the dismissal; and
(e) If the dismissal related to unsatisfactory performance – 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 FWA considers relevant.”
[36] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd6 by McHugh and Gummow JJ as follows:
“.... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[37] I am under a duty to consider each of these criteria in reaching my conclusion.7
Was there a valid reason related to the capacity or conduct of the Applicant- s 387(a)
[38] I turn first to consider whether there was a valid reason related to the person’s capacity or conduct. A valid reason for the dismissal of the Applicant need not be the reason given to the Applicant at the time of the dismissal.8 The reasons should be “…sound, defensible and well founded”9 and should not be “…capricious, fanciful, spiteful or prejudiced.”10
[39] The Applicant gave unchallenged evidence that no reason was advanced by the Respondent for her dismissal beyond Ms Chen being reportedly unhappy with the Applicant. Despite the Applicant’s requests for an explanation for her dismissal, none was forthcoming, with the letter of termination subsequently provided simply confirming the dismissal and that the decision “cannot be changed”.
[40] I accept the Applicant’s version of events and am satisfied that the Respondent lacked a valid reason to dismiss the Applicant. The absence of a valid reason weighs heavily in favour of a finding that the dismissal was unfair.
Notification of the valid reason – s 387(b)
[41] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,11 in explicit terms12 and in plain and clear terms.13 In Crozier v Palazzo Corporation Pty Ltd14, the Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”
[42] The evidence, which I accept, is that the Applicant was advised in a perfunctory manner on 6 January 2019 that her employment was to be terminated. No valid reason was provided either prior to or subsequent to the Respondent’s decision to dismiss the Applicant. This weighs strongly in favour of a finding that the dismissal was unfair.
Opportunity to respond to any reason related to capacity or conduct – s 387(c)
[43] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.15
[44] Based on the evidence before me, I am satisfied that the Respondent had made a decision to dismiss the Applicant and no opportunity was afforded to the Applicant to comment or respond to the reasons relied on by the Respondent for the dismissal. This also weighs in favour of a finding that the dismissal was unfair.
Unreasonable refusal by the employer to allow a support person – s 387(d)
[45] The unchallenged evidence of the Applicant as to the lack of prior notice and the perfunctory nature of the dismissal might suggest a request by the Applicant for a support person would have been pointless. However, there was no evidence adduced that a support person was requested or unreasonably refused during the meeting on 6 January 2019. This criterion is consequently a neutral consideration.
Warnings regarding unsatisfactory performance – s 387(e)
[46] There is no evidence that the Applicant received any warnings regarding performance shortcomings prior to her dismissal. This weighs in favour of a finding that the dismissal was unfair.
Impact of the size of the Respondent on procedures followed – s 387(f)
[47] While I have found that it is likely that the Respondent was a small business there was no evidence adduced or submissions made that would establish that the size of the Respondent impacted on the procedures followed. This criteria is therefore a neutral consideration.
Impact of the absence of dedicated human resources management specialist/expertise on procedures followed – s 387(g)
[48] No evidence was adduced or submissions made that established that the absence of dedicated human resources management specialist/expertise impacted on the procedures followed by the Respondent. This criteria is therefore a neutral consideration.
Other relevant matters - s.387(h)
[49] No other relevant matters were raised by the Applicant.
Conclusion on consideration of s. 387 Criteria
[50] Having considered each of the matters specified in s 387 of the Act, I have concluded that: the Respondent lacked a valid reason for the Applicant’s dismissal based on her capacity or conduct; it failed to notify the Applicant of a valid reason for her dismissal in plain and clear terms prior to the decision having been made; it also failed to provide the Applicant with an opportunity to respond to the reasons for her dismissal; and further, it had not warned the Applicant regarding any unsatisfactory performance. I am consequently satisfied that these significant failures rendered the dismissal harsh, unjust and unreasonable.
Remedy
[51] I now turn to consider the question of remedy pursuant to s 390 of the Act.
[52] Regardless of the remedy sought by the Applicant, s 390 of the Act requires I first determine whether reinstatement is appropriate before I may consider an order for compensation.
[53] The Applicant gave evidence that her treatment by the Respondent in her dismissal was such that she had lost all trust in her former employer and on that basis did not wish to be reinstated. She also spoke of the significant personal impact of the dismissal in terms of stress and the negative impact on her self-confidence. The Applicant seeks compensation.
[54] I am satisfied in the circumstances that the Respondent’s conduct in the dismissal of the Applicant is such as to so erode the necessary level of trust and confidence between the Applicant and her former employer as to make the re-establishment of the employment relationship untenable. In these circumstances I believe that reinstatement would be inappropriate.
Compensation
[55] Having found that reinstatement is inappropriate, I am satisfied that an order for compensation is appropriate in all the circumstances of this case.
[56] Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered:
“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.
Note: subsection 392(5) indexed to $61,650 from 1 July 2012
(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.”
[57] A Full Bench in McCulloch v Calvary Health Care Adelaide16 confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg v Paul’s Licences Festival Supermarket17 remains appropriate.
[58] I will now consider each of the criteria in s 392 of the Act.
[59] Based on an analysis of the Applicant’s payslips, I am satisfied that her remuneration with the Respondent was an average of $407.14 per week plus superannuation. Having regard to the evident fluctuations in weekly earnings revealed by the Applicant’s pay slips, my calculation of the compensation amount to be paid to the Applicant is based on the average weekly gross payment of $407.14.
Viability: s 392 (2)(a)
[60] Nothing has been put to the Commission on this issue and is unlikely to arise. It is therefore a neutral consideration.
Length of service: section s.392 (2)(b)
[61] I find that the Applicant’s period of service with the Respondent, being one year and three months, weighs against a significant award of compensation being made.
Remuneration that would have been received: s.392 (2)(c)
[62] It is necessary for me to determine the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had she not been dismissed.
[63] The Applicant states that she had no intention of leaving the Respondent’s employ and it was her intention to remain in the employment of the Respondent for several years. Furthermore, there is no evidence of an unfavourable disciplinary record of the Applicant or any other evidence that would suggest that the Applicant’s employment was likely to be at risk.
[64] While I accept that the Applicant had no immediate intention to leave the Respondent’s employ, I note that her employment had been for a relatively short period of time of some 15 months at the time of her dismissal, and only some nine months directly with the Respondent, having served some six months with the previous employer prior to her transfer to the Respondent. In these circumstances, I am unwilling to conclude that her employment would have continued on for an indefinite or even a significant period of time. This is so because of the highly speculative nature of such a conclusion and the absence of a long history of employment with the Respondent that would buttress such a conclusion.
[65] Having regard to the above, I am satisfied that but for her dismissal, the Applicant would have likely remained in the Respondent’s employment for a further three months (13 weeks). Had she done so and on the basis of her average weekly earnings, she would have received $5,292.82 plus superannuation.
Mitigating efforts: s 392(2)(d)
[66] In considering whether the Applicant has taken steps to mitigate the loss suffered as a result of the dismissal, I should take into account whether the Applicant acted reasonably in the circumstances.
[67] Evidence was adduced in relation to the Applicant’s, so far, unsuccessful efforts to secure alternate employment. I am satisfied that she has acted reasonably in the wake of her dismissal by the Respondent and as such no discount is to be applied to the proposed amount of compensation.
Remuneration earned: s 392(2)(e)
[68] The Applicant was paid two weeks pay in lieu of notice and this payment of $770.00 should be taken into consideration and is to be deducted from the proposed compensation figure. No other income has been earned since the Applicant’s termination.
Income likely to be earned: s 392(2)(f)
[69] I am satisfied that the Applicant is unlikely to earn income during the period between the making of the order for compensation and the actual compensation.
Other matters: s 392(2)(g)
[70] I find it is not appropriate in the circumstances that a contingency should be applied.
Misconduct: s 392(3)
[71] There were no issues of misconduct raised and as such no deductions for misconduct are to be made.
Shock, Distress: s 392(4)
[72] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap: s 392(5)
[73] I will deal with the compensation cap below.
Conclusion on remedy
[74] After taking into account each of the relevant considerations, I find that compensation in lieu of reinstatement is appropriate in this matter. Further, I find that compensation should be assessed having regard to the factors outlined above.
[75] The compensation that arises is as follows:
Projected remuneration lost (13 weeks) | $5,292.82 |
Deductions for income earned or likely to be earned | nil |
Deductions for contingencies | nil |
Deductions for misconduct | nil |
Deduction for notice (2 weeks) | $770.00 |
Total | $4,522.82 |
[76] The maximum compensation limit is the lesser of 26 weeks remuneration ($10,585.64) or the statutory cap of $72,700.00 that existed at the time of the Applicant’s dismissal. The amount of compensation that arises from my findings is less than that limit.
[77] Accordingly, I find that compensation in lieu of reinstatement should comprise a gross payment to the Applicant of $4,522.82 plus superannuation.
[78] Taxation as required by law is to be paid on the amount determined.
Conclusion
[79] I am satisfied that the Applicant was protected from unfair dismissal and that the dismissal was unfair.
[80] I have found that reinstatement is inappropriate but that compensation of the amount determined above is appropriate in all of the circumstances.
[81] The payment of the required compensation of $4522.82 with the appropriate deduction for taxation, plus superannuation, is to be made to the Applicant by the Respondent within 14 days of this decision.
[82] An order will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
F Khan on her own behalf.
Hearing details:
2019
Melbourne
May 21
Printed by authority of the Commonwealth Government Printer
<PR708468>
1 Exhibit A6.
2 Exhibit A7.
3 Exhibit A2, Employment Termination Letter, dated 7 January 2019.
4 Exhibit A3, Job application correspondence.
5 Exhibit A4, Weekly Pay slips for period 2 April 2018 to 18 November 2018.
6Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465.
7 Sayer v Melsteel[2011] FWAFB 7498.
8 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
9 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
10 Ibid.
11 Chubb Security Australia Pty Ltd v Thomas,Print S2679 at [41].
12 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
13 Previsic v Australian Quarantine Inspection Services, Print Q3730.
14 (2000) 98 IR 137.
15 RMIT v Asher (2010) 194 IR 1, 14-15.
16 [2015] FWCFB 873.
17 (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431.
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