Frances Newchurch v Tangentyere Council Aboriginal Corporation
[2017] FWC 5092
•3 OCTOBER 2017
| [2017] FWC 5092 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Frances Newchurch
v
Tangentyere Council Aboriginal Corporation
(U2016/15087)
| Commissioner Bissett | MELBOURNE, 3 OCTOBER 2017 |
Application for an unfair dismissal remedy- applicant unfairly dismissed – remedy – compensation ordered.
On 25 August 2017 I issued a decision[1] in which I found that Ms Frances Newchurch had been unfairly dismissed from her employment with Tangertyere Council Aboriginal Corporation (TCAC). At the time of making that decision I indicated that I would seek further submissions from the parties as to compensation (being satisfied that reinstatement was not appropriate).
After granting Ms Newchurch two extensions of time within which to file her submissions Ms Newchurch filed submissions on 21 September 2017. TCAC filed its submissions in reply on 30 September 2017.
The parties have each indicated that they are content for the Fair Work Commission (Commission) to make a decision on compensation on the basis of the materials filed.
Compensation
The Fair Work Act 2009 (FW Act) sets out the grounds on which an order for compensation is to be determined:
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.
Consideration
Ms Newchurch has provided little material that is of assistance to the Commission in determining compensation.
Ms Newchurch says that she has remained unemployed since being dismissed by TCAC on 28 November 2016. She is a client of Max Employment and attends regular appointments with its staff and follows the plan set out for her.
TCAC submits that it acknowledged, early in proceedings, that it failed to afford Ms Newchurch procedural fairness in effecting her dismissal.
TCAC submits that it there is ample evidence that, prior to her dismissal, it was having difficulties with Ms Newchurch’s conduct and performance. It says that, in all likelihood, it would have taken steps to terminate Ms Newchurch’s employment within a reasonable period of time, affording her the procedural fairness lacking in its initial decision to dismiss her.
TCAC says that, had Ms Newchurch’s employment not been terminated she would only have remained in employment for a further two to four weeks.
TCAC submits that there is no evidence that Ms Newchurch has taken any steps to mitigate her loss – that is, there is no basis on which it could be concluded that she has made reasonable attempts to find work. For this reason it says I should deduct an amount of 50% for a failure to mitigate her loss.
TCAC further submits that Ms Newchurch’s conduct ultimately led to her termination. This it says indicates that only a small or no award of compensation.
In this case I am satisfied that Ms Newchurch would have remained in employment for a limited further period of time. Ms Newchurch’s employment was terminated because of her conduct on 11 November 2016 in addition to that of 27 July 2016. However, I did find that TCAC did not provide a valid reason for dismissal although they did provide a defensible reason for her dismissal.
It was evident in the proceedings before me that the relationship between Ms Newchurch, Ms Dodson and Mr Rosalski had deteriorated significantly. Ms Newchurch was not happy with the directions she was given as to the food to be prepared for programme participants or how she was to package that food. She considered that she had been employed to cook but was not allowed to because of the decisions made with respect to meals. I am satisfied that matters would have continued to deteriorate and Ms Newchurch would not have responded well to being asked to explain her conduct of 11 November 2016 (which would have been an expected course for TCAC management to take).
The conduct and performance matters associated with Ms Newchurch’s employment would need to be properly raised with her and Ms Newchurch given an opportunity to improve and/or respond to those matters raised. This could not occur over night and an opportunity to improve would need to be given to Ms Newchurch. For this reason I am satisfied that Ms Newchurch would have remained employed for not more than a further eight weeks.
Ms Newchurch was a part-time employee. A consideration of her payslips provided by TCAC indicates that she worked between 15 and 30 hours per week. I have determined Ms Newchurch’s average weekly hours by considering her hours per week from April 2016 when she commenced as a casual employee until the termination of her employment. On this basis I am satisfied her average hours were 24.65 per week.
Ms Newchurch was paid $25.77 per hour. Her lost income was therefore $5,081.84.[2]
I have reduced this amount by 15% for general contingencies ($4,319.56).
On the basis of the material filed I am satisfied that Ms Newchurch has not earned any income since the time of her dismissal.
Ms Newchurch clearly has taken steps to enrol with an employment agency. It is not clear from her submissions however what active steps she has taken to secure employment although I note she indicates that she meets with her job network staff regularly and follows the plan set out for her. I am satisfied that I might infer from this that Ms Newchurch is taking appropriate steps to attempt to secure work in that she meets the requirements of her plan as laid out for her. I note however that she remains unemployed.
Given the lack of substantial material provided to me by Ms Newchurch I have decided to reduce any amount of compensation by 25% for a failure to mitigate of her loss. Ms Newchurch was specifically reminded of the need, in her submissions, to demonstrate what steps she had taken to find further work. Beyond indicating that she meets with her job network provider on a regular basis Ms Newchurch has not provided any information to the Commission that indicates she is actively seeking work.
Ms Newchurch’s lost remuneration is therefore $3,239.67.
In my decision with respect to the merits of the application for unfair dismissal I said:
[108] I have found above that there was no valid reason for the dismissal of Ms Newchurch. This should not be taken as there not having been legitimate grounds for concern as to Ms Newchurch’s conduct. As I have found, I do not consider Ms Newchurch to be blameless in the issues she had with her supervisors. She is a strong willed woman prepared to stand up for herself and what she considered the interests of the clients of TCAC. But this did not justify her conduct. However, as I said above while her conduct warranted some remedial action by her employer it did not provide, on balance, a valid reason for dismissal.
I have taken this into account and determined that any award of compensation should be further reduced by an amount of 20%. Ms Newchurch’s conduct did contribute to the reason for her dismissal. I do not argue with her right to stand up for what she believes is right or to raise issues with respect to indigenous health as it relates to the food she was being asked to prepare. This needs however to occur in an appropriate manner. Ms Newchurch did not do so. Her misconduct suggests a reduction in compensation is appropriate. I have therefore reduced the amount of compensation by a further 20%.
The amount I have awarded does not include any amount for shock or distress and is not over the compensation cap.
I shall order that Ms Newchurch be paid an amount of $2,591.74 in compensation plus 9.5% superannuation.
I shall order that the amount be paid within 14 days of the date of making of the order. An order[3] to that effect will be issued with this decision.
COMMISSIONER
[1] [2017] FWC 4231.
[2] 24.65 hours per week x $25.77 per hour x 8 weeks.
[3] PR596496.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR596495>
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