Gregory Pinnock v Federation Training

[2016] FWC 7125

[2016] FWC 7125

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gregory Pinnock
v
Federation Training
(U2016/6074)

COMMISSIONER BISSETT MELBOURNE, 11 OCTOBER 2016

Application for relief from unfair dismissal - compensation.

[1] On 16 August 2016 I issued a decision in which I found that Mr Pinnock’s dismissal from Federation Training was not a genuine redundancy and that Mr Pinnock was therefore unfairly dismissed. In that decision I indicated that I did not consider I had adequate material from the parties on which to make a decision on remedy. I therefore issued further directions for the filing of material in relation to remedy.

[2] This decision relates to remedy arising from my earlier decision.

Submissions

[3] Both Mr Pinnock and Federation Training filed submissions in accordance with those directions. I have taken into account these submissions in addition to the material already before me in determining compensation.

MrPinnock

[4] Mr Pinnock is 58 years old and had worked for Federation Training for a period of five years. He says that he has sought to find alternative employment and has been able to gain some casual relief teaching roles. In his written submissions of 31 August 2016 he says his earnings since the time of the termination of his employment has been $7,317.94. 1

[5] Mr Pinnock submits that he may have difficulty finding permanent employment and that, in this respect, regard should be had to his rural location in Bairnsdale.

[6] Mr Pinnock submits that he should receive the maximum compensation of 26 weeks’ pay, less the amount already earned, taking into account the nature of the dismissal, his age and the limited employment prospects for him.

FederationTraining

[7] Federation Training submits that, based on the payments already made to Mr Pinnock by virtue of the redundancy payment made to him and that he has earned (on his submissions) $7,317.94, a payment of no more than $1,151.63 should be made to him. Such compensation would mean that Mr Pinnock would have received a total payment of 26 weeks’ pay from the time of his dismissal.

Remedy

[8] I am satisfied that Mr Pinnock was protected from unfair dismissal and that he was unfairly dismissed. It is therefore necessary to consider a remedy for that unfair dismissal.

[9] Mr Pinnock does not seek reinstatement and I am satisfied that reinstatement is inappropriate in the circumstances. I shall therefore consider the appropriate compensation.

[10] Section 392 of the Fair Work Act2009 states:

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.

[11] The determination of an amount of compensation is not a matter of assuming that a person should receive the maximum amount of compensation payable and deducting from that amount money earned since dismissal or amounts already paid. Rather, the maximum amount of compensation acts as a cap on what might otherwise be paid. In this respect the determination of compensation is based on the remuneration lost by the employee based on what they would have earned had their employment not been terminated. The criteria for deciding the amount of compensation is set out in s.392(2) of the Act. It is only after considering these factors and a compensation amount is determined that the compensation cap of 26 weeks is applied. This is the approach I have adopted in this matter.

[12] I am satisfied that any order I make will not affect the viability of Federation Training (s.392(2)(a)).

[13] Mr Pinnock had been employed by Federation Training for five years (s.392(2)(b)). I am satisfied that, had Mr Pinnock not been dismissed he would have remained at Federation Training until the end of 2016 (40 weeks). I make this decision on the basis that Mr Pinnock says he would have been prepared to take a casual teaching position and this was the most likely work he would have taken on. It is not unreasonable to assume that Federation Training would review any casual teaching positions at the end of 2016 with a view to further reducing their costs. For this reason I do not consider it could be assumed Mr Pinnock would have a casual teaching position beyond the end of 2016.

[14] Had Mr Pinnock not been dismissed I consider that he would have undertaken casual teaching at Federation Training. There are difficulties in determining Mr Pinnock’s lost remuneration as he did not occupy such a position prior to his dismissal. The position he did occupy no longer exits. I have assumed that Mr Pinnock would have been redeployed to a position on a similar time fraction to his position as Work Placement Officer (WPO) (where he worked a time fraction of 0.5) and that it would have been on a similar salary to what he received as a WPO. Redeployment to a higher salary level cannot be presumed.

[15] As a WPO Mr Pinnock was being paid at the rate of $29.71779 per hour working 19 hours per week. He was therefore being paid $564.64 per week plus superannuation.

[16] The remuneration Mr Pinnock would have earned had his employment not been terminated is therefore $22,585.60 plus superannuation (s.392(2)(c)).

[17] I am satisfied that Mr Pinnock has sought to mitigate his loss (s.392(2)(d)). He has sought and gained some casual teaching work. Mr Pinnock advised the Commission that he earned $11,130.58 from temporary teaching work 2 since the termination of his employment with Federation Training. He also received $6,211.04 in redundancy pay at the time of his dismissal.

[18] Mr Pinnock’s lost remuneration is therefore $5,243.98 plus superannuation.

[19] I have decided to reduce this amount by 5% for contingencies. There is no reason to apply any higher amount. This results in an amount of $4,981.78 (s.392(2)(e)).

[20] In accordance with s.392(2)(g) I have taken into account that Mr Pinnock could have reasonably secured employment with Federation Training had he heeded the advice and efforts of others such as Mr Shelton and Ms Walker in identifying other employment opportunities for him in late 2015 and early 2016. I do not consider that Mr Pinnock properly appreciated his precarious position or the efforts of others to assist and support him. Mr Shelton’s commitment to do what he could to keep Mr Pinnock was read by Mr Pinnock as Mr Shelton giving him a commitment to on-going employment when none was given. For this reason I have reduced the amount above by 15%.

[21] I have therefore determined that Mr Pinnock should receive an amount of compensation of $4,234.51 plus superannuation.

[22] There is no need to reduce this amount for misconduct and I have not included any amount for shock or distress (s.392(4)).

[23] The amount I have decided to award is not in excess of the compensation cap (s.392(5)).

[24] I shall therefore order that Mr Pinnock be paid an amount of $4,234.51 plus superannuation in compensation. The amount is to be paid by Federation Training to Mr Pinnock within 21 days of the making of the order.

COMMISSIONER

 1   Note that this figure has been updated later in this decision to account for more recent earnings.

 2   In his written submissions on compensation of 31 August 2016 Mr Pinnock advised earnings to date of $7,317.94. On request to update this Mr Pinnock advised on 9 October 2016 of further earnings of $3,812.64.

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