Giovanni Sirianni v L & K PTY. LTD. T/A Carnegie Fruit Market
[2023] FWC 1287
•31 MAY 2023
| [2023] FWC 1287 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Giovanni Sirianni
v
L & K PTY. LTD. T/A Carnegie Fruit Market
(U2023/1329)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 31 MAY 2023 |
Application for an unfair dismissal remedy – jurisdictional objections.
Introduction
On 20 February 2023, Mr Giovanni Sirianni (the Applicant) lodged an application pursuant to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his employment with L & K PTY. LTD. T/A Carnegie Fruit Market (the Respondent) on 19 February 2023 was unfair. The Applicant seeks an order for compensation.
On 13 March 2023, the Respondent filed its Form F3 response to the unfair dismissal application in which it raised a jurisdictional objection to the application, that being the employer is a small business employer and the employer complied with the Small Business Fair Dismissal Code.
Following unsuccessful attempts by the Fair Work Commission (the Commission) to arrange a conciliation conference of the parties, the matter was allocated to my Chambers and was listed for determinative conference/hearing on 31 May 2023 to determine the Respondent’s jurisdictional objections and the merits of the application.
In advance of the hearing the Applicant filed his material in accordance with Directions issued by my Chambers. The Respondent failed to file any material or respond to email communications from my Chambers sent on 19 April & 17 May 2023. My Associate also attempted unsuccessfully to contact and discuss with the Respondent on 29 May 2023 whether they intended to appear at the conference/hearing listed for 31 May 2023. Correspondence was subsequently sent by my Chambers to the Respondent on 29 May 2023 in which the Respondent was put on notice that the conference/hearing listed for 31 May 2023 would proceed and be determined in its absence if they failed to attend.
At the conference on 31 May 2023, the Applicant appeared and gave evidence. The Respondent failed to attend the hearing. I am satisfied that the Respondent’s failure to engage with the Commission is not explained by its lack of awareness of the application, having filed a Form F3 response to the application. 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, to contact the Respondent regarding the proceedings by telephone and email correspondence. 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
The Applicant who is 67 years of age, states that he commenced employment at the Carnegie Fruit Market in 2010 and worked 35 hours per week as a sales assistant which involved him stacking fresh produce in the shop for sale. He produced an historic payslip[1] that revealed that for the week ending 27 June 2010 he received an hourly rate of pay of $13.50 and worked 35 hours in that week. He states that this was the only payslip he received during his employment with the Respondent. The Applicant further claimed that his hourly rate of pay at the date of his dismissal remained the same as on commencement, that of $13.50 per hour. No written contract of employment was provided to the Applicant. While not articulated by the Applicant, it is clear that he was covered in his employment by the General Retail Industry Award 2020[2].
Following the hearing and at the request of the Commission, the Applicant produced a group certificate for the 2021/2022 financial year. It revealed that the Applicant received gross salary and wages from the Respondent of $22,921 for that financial year.
The Respondent claims in its Form F3 response that it dismissed the Applicant on several grounds for which it says it had spoken with the Applicant about over the six months prior to his dismissal. The matters raised by the Respondent in the Form F3 include that the Applicant;
needlessly and regularly threw away a large volume of the Respondent’s fresh fruit and vegetables;
often argued with or was rude to customers, which generated multiple customer complaints;
bullied staff on numerous occasions which included both verbal and physical threats;
made racist comments to other staff to the effect that they should go back to where they came from or that they should speak English in Australia; and
often left the Respondent short staffed due to multiple health reasons and his health had been observed to have generally declined.
The Applicant rejected the claims made by the Respondent in its Form F3 and variously states as follows in relation to the specific claims made by the Respondent;
· In regard to throwing out fresh produce, it is mandatory to check the quality of the produce prior to placing it in store and that there were times when the produce was visibly rotting.
· The allegations of bullying and harassment came as a complete shock given that the Applicant was himself an immigrant to Australia.
· He steadfastly denied engaging in abusive or rude interactions with customers.
· In relation to absences from work he denied that he constantly requested time off and referred to one verbal request for annual leave when he had been instructed not to come to work for one week in January 2023.
The Applicant stated during his oral evidence that he was spoken to by one of the business owners ‘Justin’ during January 2023. He says Justin told him to have a week off to allow the Respondent to train new staff. The week off turned into a five week break during which period the Respondent denied the Applicant’s request to take annual leave and did not otherwise pay him for that five week period. The Applicant says he then met with Justin at the Respondent’s store on 19 February 2023 during which discussion the Applicant was accompanied by his son. He states that Justin told him that he was no longer employed by the Respondent but in doing so did not explain the reasons for the Applicant’s dismissal or provide an opportunity for him to respond to the reasons for his dismissal.
The Applicant gave evidence that he was not given any reason for his termination at the time of or after his dismissal. Nor, the Applicant states, was he given any opportunity to comment on his dismissal or respond to any reasons relied on by the Respondent for such dismissal. He also states that no warnings were issued to him prior to his dismissal regarding any performance or conduct issues.
The Applicant states that on termination of his employment he did not receive any payment in lieu of notice or pay out of any accrued statutory leave entitlements. The Applicant was unaware of what his accrued leave entitlements were as he had not received a payslip since 2010. He also claimed that his superannuation contributions from the Respondent were not up to date.
The Applicant gave evidence that he has applied for various positions since his dismissal but has so far been unsuccessful in securing alternate employment. His efforts to secure alternate employment have involved him directly approaching several similar fruit and vegetable shops to see if they had any vacancies. He states that he does not use a computer so has not made any on-line job applications.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from his employment. Section 386(1) of the Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant. There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.
Initial matters
Under section 396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and
(d) whether the dismissal was a case of genuine redundancy.
I turn firstly to the jurisdictional objection raised by the Respondent in its Form F3, that being it was at the time of the Applicant’s dismissal a small business employer and complied with the Small Business Fair Dismissal Code (the Code). I am satisfied on the evidence that it is likely that the Respondent was a small business. This finding is based on the Applicant’s evidence, which I accept, that there were approximately six 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. It follows that the minimum employment period required to have been served by the Applicant was 12 months.
While 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 his dismissal that he was at risk of being dismissed due to his conduct or capacity. It follows from these findings that the Respondent has not complied with the Small Business Fair Dismissal Code.
Relevant to the determination of the remaining preliminary matters I am satisfied that;
the Applicant was dismissed on 19 February 2023 and filed his unfair dismissal application on 20 February 2023, that latter date being within 21 days of the date of his dismissal;
the Applicant commenced employment with the Respondent in 2010 and at the time of his dismissal had been employed for over 12 years, that period being more than the minimum employment period of 12 months.
the Applicant was covered in his employment by the General Retail Industry Award 2020; and
the Applicant was not dismissed due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.
Having considered each of the initial matters, I am satisfied that the application was made within the required period in subsection 394(2), 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. I am now required to consider the merits of the application.
Was the dismissal harsh, unjust, or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust, or unreasonable, the Commission 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.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct – s.387(a)?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[3] and should not be “capricious, fanciful, spiteful or prejudiced[4].” However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it were in the position of the employer[5].
The Applicant gave unchallenged evidence that no reason was advanced by the Respondent for his dismissal either prior to or in the discussion on 19 February 2023. He was simply told that he was no longer employed by the Respondent. Nor was the dismissal subsequently confirmed or explained in writing. I accept the Applicant’s evidence as to his denial of the allegations raised by the Respondent in its Form F3 and am consequently 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)
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[6] and in explicit[7], plain and clear terms[8].
The evidence, which I accept, is that the Applicant was advised in a perfunctory manner on 19 February 2023 that his employment was to be terminated. No valid reason was provided either prior to or after 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)
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[9]
The opportunity to respond does not require formality and the factor is to be applied in a common-sense way to ensure the employee is treated fairly.[10] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to the concern, this is enough to satisfy the requirements.[11]
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.
Support person – s.387(d)
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. The Applicant was accompanied by his son as a support person in the discussion held with the Respondent on 19 February 2023. The son’s presence in that discussion was not opposed by the Respondent. This criterion is a neutral consideration in the circumstances.
Warnings regarding unsatisfactory performance – s.387(e)
There is no evidence before me that the dismissal related to unsatisfactory performance. This factor is therefore not relevant in the circumstances.
Impact of the size of the Respondent on procedures followed – s.387(f)
The Respondent’s Form F3 - Employer Response indicates that at the time of the Applicant’s dismissal it employed 6 employees. There is no evidence before me that the Respondent organisation’s size impacted on the procedures followed by it in dismissing the Applicant. This factor weighs neutrally in my consideration.
Impact of absence of dedicated human resources management specialist/expertise on procedures followed – s.387(g)
While there is no evidence before me, it seems unlikely that the Respondent had access to the services of an in-house human resources specialist given the Respondent’s size. This factor weighs neutrally in my consideration.
Other relevant matters – s.387(h)
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant. While no other relevant matters were raised by the Applicant, I would identify the Applicant’s age as a matter that ought to be considered. Having reached the age of 67 and being desirous of continuing to work, it is more likely that the Applicant will confront re-employment challenges than if he were considerably younger. That factor weighs in favour of a finding of harshness of the dismissal.
The further matter which I regard as relevant is that of the serious wages and entitlements underpayment question that hangs over the Applicant’s employment. The Applicant’s evidence is that he is in receipt of an hourly rate of pay of $13.50 which is some $10.00 per hour less than the relevant award base rate of pay, he has not received a payslip since 2010, he did not receive payment of any accrued statutory leave entitlements on termination after more than 12 years of employment with the Respondent and that his superannuation contributions were not up to date. Furthermore, he received no notice of dismissal or payment in lieu of such notice. The picture presented by the Applicant is one of serious and persistent non-compliance of the Respondent with its Award and statutory obligations.
It is unfortunate but perhaps unsurprising in the circumstances that the Respondent failed to attend the hearing on 31 May 2023 and respond to the matters raised by this application, including the underpayment issues raised. Having regard to the seriousness and longevity of the underpayment matters raised, it is my intention to refer these matters for investigation to the Fair Work Ombudsman.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust, or unreasonable?
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 his capacity or conduct; it failed to notify the Applicant of a valid reason for his 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 his dismissal; and it had not warned the Applicant regarding any unsatisfactory performance. Furthermore, the Applicant’s age and the issues of alleged underpayment of wages and entitlements also weigh in favour of a finding of harshness in the dismissal. I am consequently satisfied that the dismissal was in all the circumstances harsh, unjust and unreasonable.
Remedy
Being satisfied that the Applicant:
(i)made an application for an order granting a remedy under s.394;
(ii)was a person protected from unfair dismissal; and
(iii)was unfairly dismissed within the meaning of s.385 of the Act,
I may, subject to the Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
Under s.390(3) of the Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of the Applicant inappropriate?
The Applicant does not seek reinstatement but seeks compensation. Having regard to the Applicant’s view, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”[12].
Having found that the Applicant was unfairly dismissed and having regard to his long period of service with the Respondent and noting that the Applicant remains unemployed, in these circumstances, I consider that an order for payment of compensation is appropriate.
Compensation – what must be taken into account in determining an amount?
Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a)the effect of the order on the viability of the Respondent’s enterprise;
(b)the length of the Applicant’s service;
(c)the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d)the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e)the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f)the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g)any other matter that the Commission considers relevant.
I consider all the circumstances of the case below.
Effect of the order on the viability of the Respondent’s enterprise (s 392(2)(a))
There was no evidence before me of the effect on the viability of the Respondents’ business of an award of compensation. I consequently find that an order for compensation is unlikely to have an effect on the viability of the employer’s enterprise.
Length of the Applicant’s service (s 392(2)(b))
The Applicant commenced employment with the Respondent in 2010 and was terminated on 19 February 2023, a period of more than 12 years which was served as a full-time employee. I consider that the Applicant’s length of service weighs in favour of a significant award of compensation.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed (s 392(2)(c))
As stated by a majority of the Full Court of the Federal Court, “in determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”[13]
The Applicant stated in his evidence that while he was 67 years of age, he had no immediate plans to retire and expected to continue working as long as he was able to. When pressed, he did acknowledge that access to the old age pension was a relevant consideration in his future retirement planning. Relevantly, 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.
I accept that the Applicant had no immediate intention to leave the Respondent’s employ. I also note the Applicant’s age and his concession as to access to the aged pension being relevant to his retirement planning. In these circumstances I am unwilling to conclude that his employment would have continued on for an indefinite or even a significant period of time. It is more likely in my view that the Applicant’s employment would have continued for no more than 12 months.
Turning to the remuneration that the Applicant would have earned had his employment continued for a further 12 months, his pre-dismissal earnings do not provide a sound basis for calculating his likely remuneration because of the underpayment issues referred to above. A better basis may be found in applying the relevant rate of pay in the General Retail Industry Award 2020. Having regard to the Applicant’s duties I am satisfied that the appropriate classification in that award is that of Retail Employee Level 1 which attracts a base hourly rate of pay of $23.38. Based on the 35 hour week worked by the Applicant, this equates to gross weekly earnings of $818.30 and gross earnings for a 12 month period of $42,551.60.
Having regard to the above, I am satisfied that but for his dismissal, the Applicant would have likely remained in the Respondent’s employment for a further 12 months. Had he done so and based on the application of the relevant award rate of pay, he would have received $42,551.60 plus superannuation for that 12 month period.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal (s 392(2)(d))
The Applicant must provide evidence that he has taken reasonable steps to minimise the impact of his dismissal.[14] What is reasonable depends on the circumstances of the case.[15]
As stated above, the Applicant has approached several fruit and vegetable shops in his area in an endeavour to secure alternate employment without success at this stage. I note the Applicant’s age and accept his evidence as to his inability to make on-line job applications. In these circumstances I am satisfied that the Applicant has made reasonable efforts to mitigate his loss in the wake of his dismissal and no discount is to be applied to the proposed amount of compensation.
Income earned by the Applicant following his dismissal (s 392(2)(e))
The Applicant did not receive payment in lieu of notice on termination and has earned no other income since his termination. Consequently, no discount is to be applied to the proposed amount of compensation.
Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation (s 392(2)(f))
I am satisfied that the Applicant is unlikely to earn income between the making of an order for compensation and the payment of the compensation. Consequently, no deduction is to be made in respect of likely earnings in that period.
No other relevant matters were raised by the Applicant going to an order for compensation.
Misconduct: s 392(3)
There were no issues of misconduct raised and as such no deductions for misconduct are to be made.
Shock, Distress: s 392(4)
I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation – how is the amount to be calculated?
As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[16] This approach was articulated in the context of the Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[17].”[18]
The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 1
I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated his employment to be $42,551.60 on the basis of my finding that it is likely the Applicant would have remained in employment for a further period of 12 months. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”.[19]
Step 2
I have found that the Applicant has not earned any amount of remuneration since the date of his dismissal, and that he is unlikely to earn any remuneration between the making of the order for compensation and the payment of compensation.
Only monies earned since termination for the anticipated period of employment are to be deducted.[20] Consequently, no deductions are to be made for earnings. I have also found that the Applicant has taken reasonable steps to mitigate his losses and consequently no deduction is to be made to the amount of $42,551.60.
Step 3
I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment.[21]
I do not consider it appropriate to deduct an amount for contingencies.
Step 4
I have considered the impact of taxation but have elected to settle a gross amount of $42,551.60 which is to be subject to normal taxation.
Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.”[22]
I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the Act, and in particular the Applicant’s length of service and his age which is likely to result in diminished re-employment prospects.
Compensation – how does the compensation cap apply?
Section 392(5) of the Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:
(a)the amount worked out under section 392(6); and
(b)half the amount of the high income threshold immediately before the dismissal.
The amount worked out under section 392(6) is the total of the following amounts:
(a)the total amount of the remuneration:
(i) received by the Applicant; or
(ii) to which the Applicant 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 Applicant 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 Applicant for the period of leave is in accordance with the regulations.
Based on the Award rate of pay of $23.38 per hour, the Applicant was entitled to receive at the date of his dismissal, I find that the total amount of remuneration to which the Applicant was entitled in the 26 week period prior to his dismissal on 19 February 2023 was that of $21,275.80. That figure was arrived at by multiplying the hourly rate of pay of $23.38 required under the award by 35 hours per week that the Applicant worked by 26 weeks.
The high income threshold immediately before the dismissal on 19 February 2023 was $162,000 pa. Half of that amount is $81,000.
The amount of compensation ordered by the Commission must therefore not exceed $21,275.80.
Considering the above, I will make an order that the Respondent pay $21,275.80 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision.
Conclusion
I am satisfied that the Applicant was dismissed at the initiative of the Respondent.
Having been satisfied in respect of the other initial matters, I have considered and determined that the Applicant’s dismissal was harsh, unjust and unreasonable and thereby unfair. I am further satisfied that reinstatement would be inappropriate and that an award of compensation is appropriate.
Finally, I have determined to make an order that the Respondent pay $21,275.80 gross less taxation as required by law to the Applicant in lieu of reinstatement within 14 days of the date of this decision. An order giving effect to this decision will be issued separately in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
G Sirianni, Applicant.
Hearing details:
2023.
Melbourne:
May 31.
[1] Exhibit A1, Payslip for week ending 27 June 2010
[2] MA000004
[3] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[4] Ibid.
[5] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[6] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[7] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[8] Ibid.
[9] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[10] RMIT v Asher (2010) 194 IR 1, 14-15.
[11] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[12] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[13] He v Lewin [2004] FCAFC 161, [58].
[14] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[15] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[16] (1998) 88 IR 21.
[17] [2013] FWCFB 431.
[18] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
[19] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[20] Ibid.
[21] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
[22] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
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