Gilda Cohen-Shapira v The Scots College

[2014] FWC 953

[2014] FWC 953

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gilda Cohen-Shapira
v
The Scots College
(U2013/7116)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 13 FEBRUARY 2014

Application for relief from unfair dismissal.

Introduction

[1] On 4 March 2013 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Ms Gilda Cohen-Shapira (the Applicant) against her former employer The Scots College (the Respondent).

[2] The application was filed by Hugh and Associates, Solicitors.

[3] The matter was listed for conciliation on 27 March 2013 but did not proceed. An unsuccessful conciliation was conducted by Deputy President Booth on 2 August 2013.

[4] I conducted a programming hearing by teleconference on 23 October 2013.

[5] The matter was heard on 6 November but could not be completed. At the conclusion of that hearing directions were issued for the filing of further written submissions. The matter was further heard on 16 December 2013.

[6] The Applicant was represented by Mr N. Read of counsel and the Respondent by Mr B. Cross of counsel.

[7] The Applicant relied on oral evidence and submissions and:

● Written submissions filed on 4 October 2013, 15 November 2013, 6 December 2013 and 20 December 2013.

● Witness statement of the Applicant dated 4 October 2013.

● Witness statement of the Applicant in response dated 5 November 2013.

[8] The Respondent relied on oral evidence and submissions and:

● Written submissions filed on 24 October, 27 November and 22 December 2013.

● Witness statement of Ms Nicole Stevenson, Academic and Human Resources Administrator for the Respondent.

● Witness statement of Mr Peter Moulds, Director of Curriculum and Staffing for the Respondent.

[9] I issued an order requiring production of documents on the application of the Respondent on 1 November 2013. These related to the employment and salary documentation of the Applicant for 2010, 2011 and 2012.

[10] I also issued an order requiring production of documents on the application of the Applicant on 6 November 2013. These related to the Applicant’s personnel file and the Respondent’s rosters for casual teachers for 2013.

Background

[11] The Applicant was employed as a teacher at The Scots College, a private school in the Eastern Suburbs of Sydney, from 11 May 2004 until 11 February 2013. The nature of her employment and, indeed, whether she was dismissed at all is in dispute.

[12] In her F2 form, the Applicant stated the reasons for the dismissal were:

● “Lack of work”.

● The Applicant asserts that she worked regular and systematic hours often on a full-time basis.

● Over the ten year period she says that she worked, on average, four days per week.

● The Applicant was employed pursuant to the Independent Schools NSW Model (Translocation Teachers) Multi-Enterprise Agreement 2011-2014 (the Agreement) which superseded the State Award.

● On 11 February 2013 the Applicant received an email from the Respondent which said that there would be a lack of work to offer the Applicant. She took this as a dismissal.

● The Applicant argued that she is a part-time employee, pursuant to the Agreement, and not a casual.

[13] In its F3 form, the Respondent denied that the Applicant had been dismissed. It argues that the Applicant was employed on an irregular casual basis and remains on the casual register. The Respondent submits that the Applicant is not a person protected from unfair dismissal because she was not dismissed and she had not completed the required period of employment because of her casual status.

[14] The Respondent states the Applicant was initially engaged as a casual employee undertaking relief teaching from 25 February 2004. The Applicant had a temporary full-time teaching position for fixed periods in 2005, 2007 and 2008. Otherwise, she was engaged as a casual relief teacher who did not have regular and systematic hours and had no expectation of ongoing work.

[15] The Respondent states that the Applicant did little work in 2012 because of a personal injury and has not worked for the Respondent since 17 December 2012.

[16] The Respondent agrees that it told the Applicant that there would not be much work in 2013. However, the Respondent asserts that the Applicant was advised that she had not been dismissed and she remained on the Respondent’s books.

[17] The Respondent also lodged an F4 “Objection to the Applicant” form on 24 April 2013 which essentially restated the arguments set out above.

[18] The Respondent withdrew its separate jurisdictional objection and all issues were argued together.

Protection from Unfair Dismissal

[19] An order for reinstatement or compensation may only be issued where I am satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

[20] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[21] There was no dispute that the Applicant was covered by the Agreement in compliance with s.382(b). However, because of the Applicant’s alleged casual status the Respondent submits that the Applicant is not a person protected from unfair dismissal in accordance with s.382(a).

[22] In order for a casual employee to satisfy the minimum period of employment they must come within the provisions of s.384 which relevantly provide:

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

Was the dismissal unfair?

[23] 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.

Was the Applicant dismissed?

[24] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act. Section 386 of the Act provides that:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[25] The Respondent denied that it had terminated the Applicant as defined by s.386(1). Its version of the facts was that there was simply not as much work for casuals in 2013. The Applicant sought compensation for her loss of employment.

[26] Some material was put on the criteria that the Commission must take into account under s.387 in considering whether a dismissal is harsh, unjust or unreasonable but the overwhelming emphasis was on the threshold questions of whether the Applicant was protected from unfair dismissal as a result of her casual status and whether the Respondent had taken action to dismiss her.

Was the Applicant Casual or Part-Time?

[27] The Applicant submitted that during her ten years as a relief teacher with the Respondent she had worked full-time for periods in excess of four weeks to cover absent teachers on an extended leave and at other times she had been called in to cover shorter absences. She says she worked regular and systematic hours and was properly classified as a “part-time teacher” or “temporary teacher” under the Agreement

[28] By 11 February 2013, the Applicant had not received a call for relief teaching for the year, as was the usual practice. She contacted the Respondent which led to the Respondent’s email referred to above sent by Ms Tania Lloyd, the Studies Co-ordinator. The lateness of this in the school year prejudiced her chances of obtaining other employment.

[29] The Applicant also submitted that during her nine years she worked almost “exclusively” for the Respondent but conceded she did work for other schools.

[30] It was common ground that there were written contracts of employment for the extended engagements which had occurred.

[31] Crucial to this question are the definitions contained in clause 3 of the Agreement which relevantly provide as follows:

“Casual Teacher means a Teacher who is engaged on a casual basis for a period not exceeding four weeks. Provided that such casual engagement may continue beyond four weeks for a further four weeks where the Casual Teacher is replacing a Teacher absent for a period which extends beyond four weeks (and such longer absence was not anticipated when the Casual Teacher was engaged);

Full-Time Teacher means any Teacher other than a Casual, Part-Time or Temporary Teacher;

Part-Time Teacher means a Teacher who is engaged to work regularly, but for less than a full school week and not more than 0.8 of the normal hours which a Full-Time Teacher at the school is required to teach;

Provided that a Part-Time Teacher may work more than 0.8 of the normal full time load where an agreement has been reached by the parties. Such agreement shall be in writing and shall include the length of the term of the arrangement and the scheduling of time;

Temporary Teacher means a Teacher employed to work full-time or part-time for a specified period which is not more than a full school year, but not less than four school weeks;

Provided that a Teacher may be employed for a specific period in excess of a full school year but not more than two full school years where such a Teacher is replacing a Teacher who is on leave for a specified period in excess of a full school year.

A teacher shall not be employed on a temporary basis unless the Teacher is advised in writing at the point he or she is offered the position that it is temporary. A Teacher shall not be employed on a temporary basis for the purpose of probation.

[32] The Applicant’s primary submission is that she was not a casual but that if it is decided she is, then she falls within s.384(2)(a). From 2007 to 2012 the Applicant was engaged on an average of 104.08 days per year.

[33] The Applicant submits that she does not fall within the definition of casual teacher in the Agreement quoted above because in each of the years from 2007 she worked for more than four weeks in addition to temporary work engagements.

[34] The Respondent bases its submission that the Applicant was a casual on the terms of the Agreement. It points out that in 2012 she worked for a total of 85 days with no period exceeding four weeks.

[35] There was a similar pattern between 2007 and 2011. Further, at all times the Applicant was paid as a casual receiving a casual loading and not the entitlements received by full-time, part-time and temporary employees.

[36] Apart from three instances of temporary full-time employment, for which there were separate written contracts of employment, the Applicant was engaged as a relief teacher by way of a telephone call in the morning or the night before.

[37] The Respondent conceded that the employment of the Applicant was regular and systematic as defined in the Act but denied her hours were regular and systematic (See [37] of Peter Moulds witness statement - Exhibit C4).

[38] The Respondent submitted that the proper approach to the consideration of casual employment is contained in the Full Bench decision in Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434 (Telum). I agree and adopt that approach.

[39] The Full Bench decided inter alia at [58]:

“In summary, the FW Act provides for the regulation of terms and conditions of employment of national system employees through an interrelated system of the National Employment Standards, modern awards, enterprise agreements (and, in some cases, workplace determinations or minimum wage orders). Having regard to the objects and purpose of the legislation, it is obvious that the legislature intended that those components should interact consistently and harmoniously. We conclude that on the proper construction of the FW Act the reference to “casual employee” in s.123(3)(c) and the rest of the NES - and, indeed, elsewhere in the FW Act - is a reference to an employee who is a casual employee for the purposes of the Federal industrial instrument that applies to the employee, according to the hierarchy laid down in the FW Act (and, if applicable, the Transitional Act). That is, the legislature intended that a “casual employee” for the purposes of the NES would be consistent with the categorisation of an employee as a “casual employee” under an enterprise agreement made under Part 2-4 of the FW Act (or under an “agreement based transitional instrument” such as a workplace agreement or certified agreement made under the WR Act) that applies to the employee or, if no such agreement applies, then consistent with the categorisation of an employee as a “casual employee” within the modern award that applies to the employee. Subject to any terms to the contrary, a reference to a “causal employee” in an enterprise agreement (or agreement based transitional instrument) will have a meaning consistent with the meaning in the underpinning modern award (or pre-reform award/NAPSA).”

[40] It seems to me that the evidence of the Applicant’s employment and the provisions of the Agreement make it clear she was a casual. Apart from three specific periods of temporary employment she had the indices of casual employment:

● Engagement for less than four weeks at a time;

● Payment of casual loading in lieu of leave and other entitlements;

● Call in on the day for work.

[41] Moreover, the Applicant never contested her casual status. In fact she conceded it on a number of occasions.

[42] I find that the Applicant’s casual employment comes within s.384(2)(a). The regular and systematic basis of the Applicant’s employment was conceded by Mr Moulds as noted above. She worked for the Respondent for nine years for about 100 days per year. She had reasonable expectation that her employment on this basis would continue into 2013.

[43] I therefore find that the Applicant is a person protected from unfair dismissal pursuant to s.382.

Was the Applicant Dismissed Pursuant to s.386?

[44] The answer to this question is, in my view, more difficult but, on balance, I find that she was.

[45] Cases such as Mohazab v Dick Smith Electronics Pty Ltd (No. 2) (1995) 62 IR 200 and O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 deal with sub-section (a). A termination is at the employer’s initiative when its action “directly and consequentially” results in the termination of employment, and the employee would have still been employed but for that action. An analysis of all the circumstances is required.

[46] In this case, the Applicant had been contacted for casual work in each of the last nine years. No contract was made with her in 2013 without any adequate explanation or process.

[47] In a similar case, Kalinda Ferguson and Belinda Betts v Pleasant Way Motel Pty Limited [2011] FWA 3815,on which Mr Read relied, Commissioner Connor concluded at [26]:

“Both Ms Ferguson and Ms Betts recorded in their s.394 application that they were dismissed effective from Thursday, 9 December, 2011. Whilst they at no time were told that they were dismissed - and Mr Eivers asserts that they were not- from that date they had simply not been picked up to work. It would be natural for Ms Ferguson and Ms Betts to assume from that fact that they were dismissed. It is not sufficient for Mr Eivers to say, as he has in his e-mail to me, that they were still employed and that he had offered them to return to work - albeit I would believe on a very casual basis. I am satisfied that from the evidence before me from Ms Ferguson and Ms Betts that from the outset they were both engaged on a regular and systematic basis only to have the terms of their employment altered unilaterally to a most casual arrangement from which they were not being picked up for work at all, or at least picked up on a very limited basis only. That constitutes such a fundamental change to the employment conditions under which they were formerly engaged as to effectively support Dr Thornton’s submission that they had been dismissed, in my opinion.”

[48] The Respondent had obligations to the Applicant as the employer which they did not discharge. This led to an effective dismissal.

[49] It was argued by Mr Cross, on behalf of the Respondent, that there was no evidence of any action or intention by the Respondent to bring the employment of the Applicant to an end. A decision was taken to increase the number of permanent employees and reduce the number of casuals.

[50] The following was the explanation given by Ms Lloyd to the Applicant by email on 12 February 2013:

“Dear Gilda

I have spoken to Peter this morning about your query regarding why we have not employed you to teach this week. At the moment, we are slightly over staffed in most departments and will not be using as many casual teachers this year. There are some full time positions that need to be filled in the next couple of weeks, and so we have used this opportunity to use prospective teachers as casuals and be in a position to assess their suitability for the jobs on offer. We are also using recent staff members who are on study leave, or employed in other positions in the College (e.g. as sports coaches). You are still on our casual book, but I believe that there will not be much casual work at the College this year.

I hope this helps answer your query Gilda.

Regards

Tania”

(Exhibit C4, Attachment PM21)

[51] A similar formulation was given by Mr Moulds two days later. Even if this is the full explanation for the Respondent’s actions, there should have been a much more extensive process of consultation with the Applicant given her long and apparently satisfactory service with the Respondent.

[52] I found Mr Moulds’ explanation for the changed casuals’ policy for 2013 under cross-examination not very convincing. A lot of material was tendered on staffing lists and movements of the Respondent. However, Mr Moulds conceded that the number of casuals for 2013 did not change very much (see Transcript PN932 to PN956). I can only conclude that the Respondent made a specific decision not to keep the Applicant on which was, I find, an effective dismissal.

Harsh, unjust or unreasonable

[53] Having decided that the Applicant was protected from unfair dismissal and was, in fact, dismissed I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act

“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:

(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 dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—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 that the FWC considers relevant.”

Approach of the Commission

[54] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 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.”

[55] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:

“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”

[56] As I noted above, given the nature of this case little attention was paid to s.387. It follows from my conclusions that I find there was no valid reason for the dismissal. No issue was raised about the Applicant’s conduct or capacity. There is no consideration in relation to sub-section (b) to (h) which would detract from a conclusion that the dismissal was harsh, unjust or unreasonable. I note that the Respondent’s size and resources should have meant that it dealt with the Applicant in a more appropriate manner given her long and satisfactory service.

[57] I find that the Applicant’s dismissal was unfair within the terms of s.385.

Compensation

[58] Reinstatement was not sought by the Applicant. I consider an order for payment of compensation is appropriate in accordance with s.390(3)(b).

[59] 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. It provides:

“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.”

[60] The method for calculating compensation under s.392 of the Act was recently dealt with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge,[2013] FWCFB 431 (Bowden). In that decision the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket, (1998) 88 IR 21 and Ellawala v Australian Postal Corporation, Print S5109 (Ellawala). I have adopted the methodology utilised in Bowden in determining the amount of a payment of compensation.

[61] A lot of material was tendered on the Applicant’s earnings, including following the dismissal. I agree with Mr Cross’s argument that the Applicant sought to understate her earnings at other schools. I have taken all of these submissions into account in determining what I consider to be reasonable compensation under s.392. I now consider each of the criteria in s.392.

Remuneration that would have been received: s.392(2)(c)

[62] The Applicant advances its claim on the basis of the current rate for a casual teacher under the Agreement of $424.08 per day. The Applicant’s average engagement per year between 2007 and 2012 was 104.08 days. It is submitted that the Applicant would have continued to work for the Respondent for at least six months. Therefore, the compensation sought is $22,069.12 (52.04 days X $424.08). (Applicant’s submission, 15 November 2013, page 9).

[63] Obviously, there is a difficulty in reaching a firm conclusion given the casual nature of the Applicant’s employment, but I consider the Applicant’s approach reasonable. However, some reduction in the period is required because of her casual status.

[64] I determine that the period of time the Applicant would have remained employed by the Respondent or would have likely remained employed by the Respondent, had she not been dismissed is four months. I also determine that the remuneration that would have been received is $14,713 ($424.08 X 34.7 days).

Remuneration earned since the dismissal: s.392.(2)(d), (e) and (f)

[65] It was common ground that the Applicant had worked as a casual teacher at two schools and the Department of Education in 2013, earning $29,094.11, on the Applicant’s evidence, between the dismissal and 16 December 2013. (Applicant’s submission, 20 December 2013, page 1). It was pointed out that this was $26,739.67 less than her 2012 earnings.

[66] The Respondent submits that even if the assumptions that led to the $22,069.12 claim are accepted, the figure should be reduced because:

● The Applicant took a three week planned holiday in early 2013;

● Any earning in 2013 would not have commenced until mid February;

● The Applicant’s ongoing earnings from other schools which have been understated. (Respondent’s submission, 27 November 2013, pages 11 and 12)

[67] I consider that the amount of compensation should be discounted to $10,000.

Other matters: s.392(2)(g)

[68] A broad discretion is given to the Commission to consider other matters. I have not considered any other matter.

Viability: s.392(2)(a)

[69] Given the nature of the employer, an order for compensation will not affect the viability of the business.

Length of Service: s.392(2)(b)

[70] I have taken into account the Applicant’s relatively long and apparently satisfactory service.

Mitigating efforts: s.392(2)(b)

[71] 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, (Ellawala).

[72] I find that the Applicant’s efforts at mitigation have been reasonable given her ongoing status as a casual teacher.

Misconduct: s.392(3)

[73] There is no issue about misconduct which would reduce the compensation.

Shock, Distress: s.392(4)

[74] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap: s.392(5)

[75] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the Applicant, or to which the Applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or half the amount of the high income threshold immediately prior to the dismissal.

[76] The high income threshold component is $64,560.

[77] The amount the Applicant would have earned, or to which the Applicant was entitled, for the 26 week period immediately prior to the dismissal was therefore approximately $28,000 based on her 2012 income.

[78] The amount of compensation I will order does not exceed the compensation cap.

[79] I will order the Respondent to pay to the Applicant an amount of $10,000.

Conclusion

[80] I am satisfied that the Applicant was protected from unfair dismissal, the Applicant was dismissed and that the dismissal was unfair and a remedy of compensation is appropriate. In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.

[81] An order (PR547729) will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

N. Read of counsel with A. Dorahy, solicitor for the Applicant.

B. Cross of counsel with K. Lopes, solicitor for the Respondent.

Hearing details:

2013

Sydney:

October 23, Telephone conference;

November 6;

December 16.

Final Written Submissions:

December 22

Printed by authority of the Commonwealth Government Printer

<Price code C, PR547563>