Guillaume Brassard v Howe Architects Pty Ltd t/a Howe Architects
[2020] FWC 2692
•30 JULY 2020
| [2020] FWC 2692 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Guillaume Brassard
v
Howe Architects Pty Ltd t/a Howe Architects
(U2020/1336)
DEPUTY PRESIDENT BOYCE | SYDNEY, 30 JULY 2020 |
Application for an unfair dismissal remedy — where applicant employed under a s.457 working visa — where no valid reason for dismissal — where no procedural fairness — where dismissal is found to be harsh, unjust unreasonable – compensation awarded.
Introduction
[1] On 7 February 2020, Mr Guillaume Brassard (Applicant) lodged an application for unfair dismissal with the Fair Work Commission (Commission). The Applicant did so by filing a Form F2 through the Commission’s website (Application). The Applicant alleges that he was dismissed from his employment with Howe Architects Pty Ltd t/a Howe Architects (Respondent) on 20 January 2020, and that this dismissal was unfair within the meaning of Part 3-2 of the Fair Work Act 2009 (Act).
[2] Despite being directed to lodge a Form F3 (i.e. an Employer Response to an unfair dismissal application) by no later than 19 February 2020, the Respondent did not file that document until 11 May 2020. Pursuant to that Form F3, the Respondent disputes that the Applicant’s dismissal was unfair.
[3] On 12 May 2020, I held a hearing (by telephone) to determine the Applicant’s claim. The Applicant appeared for himself. Mr Christopher Howe (Director, Respondent) appeared for the Respondent.
[4] Having considered the submissions of the parties, and the evidence provided prior to, during, and post the hearing, I have determined that the Applicant’s dismissal by the Respondent was unfair, and that compensation is an appropriate remedy in the circumstances. My reasons for this decision follow.
Procedural Background
[5] On 23 March 2020, the matter was allocated to my Chambers. On 30 March 2020, I issued directions to the parties regarding the timetabling of submissions, witness statements, and evidence (Initial Directions).
[6] Relevantly, setting the matter down for hearing 12 May 2020, the InitialDirections were as follows:
“[1] By 4.00pm AEST on Tuesday, 14 April 2020, the Applicant must file with the Commission and serve on the Respondent an Outline of Submissions, witness statements, and any documents in support of his application.
[2] By 4.00pm AEST on Monday, 27 April 2020 the Respondent must file in the Commission and serve on the Applicant an Outline of Submissions, witness statements, and any documents in support of its position.
[3] By 4.00pm AEST on Monday, 4 May 2020, the Applicant must file in the Commission and serve on the Respondent submissions in reply, witness statements in reply, and any documents in support of those reply submissions”.
[7] On 19 April 2020, the Applicant wrote to my Chambers requesting an amendment to the Initial Directions. In summary, the Applicant stated that he had to return to his native country of Canada. Upon his arrival, he was held up in quarantine because of the COVID-19 pandemic, and so was unable to properly engage with the proceedings.
[8] I accepted that the Applicant was facing exceptional circumstances vis-à-vis the imposition of COVID-19 related quarantine. As such, amended the directions were issued to the parties as follows (Amended Directions):
“[1] By 4.00pm AEST on Tuesday, 14 April 2020, Friday, 24 April 2020 the Applicant must file with the Commission and serve on the Respondent an Outline of Submissions, witness statements, and any documents in support of his application.
[2] By 4.00pm AEST on Monday, 27 April 2020, Friday, 1 May 2020 the Respondent must file in the Commission and serve on the Applicant an Outline of Submissions, witness statements, and any documents in support of its position.
[3] By 4.00pm AEST on Monday, 4 May 2020, Friday, 7 May 2020 the Applicant must file in the Commission and serve on the Respondent submissions in reply, witness statements in reply, and any documents in support of those reply submissions”.
[9] The Applicant filed the following materials with my Chambers:
(a) an Outline of Submissions (undated);
(b) Witness Statement of Mr Guillaume Brassard dated 23 April 2020 (Brassard Statement);
(c) Affidavit of Mr Guillaume Brassard dated 23 July 2020; and
(d) a bundle of documents.
Those materials were duly served on the Respondent.
[10] The Respondent failed to comply with Order [2] of the Amended Directions. Moreover, the Respondent did not correspond or otherwise engage with the matter until 11 May 2020 (being the day prior to the listed hearing in this matter), when Mr Howe of the Respondent wrote to my Chambers as follows (Adjournment Request):
“I refer to the attached Notice of Listing U2020/1336 - Brassard v Howe Architects Pty Ltd set down for 12noon tomorrow.
Due to the unusual financial and social impacts brought about by the Covid-19 Pandemic, I have been trying to keep my business afloat over the last six weeks, am completely personally and professionally overwhelmed as a result, and have consequently overlooked dealing with this matter.
Unfortunately I am therefore not in a position to be able to provide any reasonable response should this matter proceed to hearing tomorrow and respectfully request an adjournment of this hearing for one month to allow me to provide a written submission, witness statements and supporting documents from the Respondent prior to the matter proceeding to hearing.
I profusely apologise for this late request for adjournment which I trust Deputy President Boyce will consider favourably given the very substantial pressures on businesses at this time.
For clarity I have not included the Applicant in this request for adjournment as I do not know whether this is necessary or appropriate”.
[11] Later that same day, my Chambers responded to the Adjournment Request as follows:
“The Respondent’s application for an adjournment has come at the 11th hour, is prejudicial to the Applicant, and unnecessarily exhausts the Commission’s resources. While the Commission is cognisant of the effect COVID-19 is having on employers across Australia, those pressures do not go so far as to prevent a reasonable employer from making this request at an earlier stage of these proceedings, when it would have been appropriate to make such an application, especially noting that the Respondent in this matter has (at all times) been on notice as to the directions set in this matter.
The request for an adjournment below is refused. The matter remains listed for hearing at 10:00am AEST on Tuesday, 12 May 2020. It is expected that someone will attend on the Respondent’s behalf. If the Respondent fails to attend, then a decision and/orders may be made in the Respondent’s absence and contrary to the Respondent’s interests. Further, if the Respondent intends to put on submissions and/or witness statement(s), it should do so no later than 5:00pm AEST today”.
[12] Later that same day, the Respondent filed its Form F3. 1 I note that there was no supporting documentation attached to the Form F3, and that the Form F3 was, and remains, the only document filed by the Respondent in these proceedings. The Respondent filed no evidence in the form of witness statements, documents, or written submissions in these proceedings. That was a choice the Respondent chose to make, however the Respondent cannot escape the consequences of that deleterious conduct when findings based upon the evidence before the Commission need to be made.
Respondent’s evidence
[13] With my leave, Mr Howe was called as a witness for the Respondent during the hearing. Mr Howe’s evidence-in-chief was as follows:
(a) Between October 2019 and December 2019, Mr Howe had various discussions with the Applicant, whereby he raised issues concerning the Applicant’s performance and competence. 2 In this regard:
(i) Mr Howe expressed concerns with the Applicant as to his poor and substandard quality of work, and his failure to work with, and supervise, other more junior staff in the office (such as checking their work standards and work documentation).
(ii) Mr Howe raised with the Applicant his repeated failure to undertake computer drafting work of a professional standard (pursuant to basic and clear instructions). Mr Howe states that on one occasion he directed the Applicant to withdraw to a meeting room, whereby Mr Howe said words to the following effect:
“This cannot continue. We cannot continue to have these issues in the office. It's very destructive to the office. It's causing a very severe effect on our work going out of the office which is affecting the credibility of the business and this cannot continue. You must comply with the way in which you've been instructed to undertake your work”.
(iii) In early December 2019, Mr Howe travelled to the United States. Prior to his departure, Mr Howe states that he had a discussion with the Applicant about making sure that the Applicant was complying with the requirements of the office, in particular, that the Applicant was checking the work that he was doing, in conjunction with checking the work of two other staff members. Mr Howe made clear that, upon his return, he expected that those instructions will have been complied with.
(iv) Mr Howe was aware that the Applicant repeatedly failed to file emails in accordance with office system requirements, causing various flow-on failures and problems. Mr Howe raised this issue with the Applicant (when Mr Howe returned from his trip to the United States).
(v) Mr Howe addressed the Applicant’s “propensity” for leaving the office before 5:00pm, which Mr Howe stated was not adequate nor acceptable, especially given that the Applicant was expected to set a standard for more junior staff (and work at least the same hours that they do).
(b) Mr Howe acknowledged that he did not document any of the above issues or interactions. 3
Applicant’s evidence
[14] By way of the Brassard Statement, and the documentary evidence filed by the Applicant, the Applicant’s evidence-in-chief was as follows:
(a) On 14 August 2017, the Applicant was engaged by the Respondent as a contractor on a “417 Work/Holiday” visa.
(b) From 4 March 2018, the Applicant was engaged by the Respondent as an employee, having been sponsored by the Respondent as an “architectural draftsman” on a “457 Skilled Worker” visa.
(c) On 14 August 2018, the Applicant’s job title changed from “Architectural Graduate” to “Associate”. Concurrent with this change was an increase in the Applicant’s salary. The Respondent never explained what the change in title meant in terms of its expectations of the Applicant’s performance and/or deliverables.
(d) During the period of employment, there was never any performance reviews. No one from the Respondent raised any issues with the Applicant’s performance, either orally or in writing.
(e) From July 2018 until the end of his employment, the Applicant raised concerns regarding the non-payment of his superannuation. Further, the Applicant sought payslips from the Respondent, but they were never provided. Moreover, the Applicant sought PAYG information from the Respondent so that the Applicant could properly engage with his tax obligations for the 2018/19 financial year. Again, the Respondent did not meet this request.
(f) On one occasion in September 2019, Mr Howe and the Applicant met to discuss the performance of other contractual staff. Mr Howe did not address any issues with the Applicant’s performance at this meeting.
(g) The Applicant took a period of annual leave between 23 December 2019 to 17 January 2020. When the Applicant returned to work on 20 January 2020, the Applicant had a conversation with Mr Howe to the following effect:
Mr Howe: “There were too many errors and I have no other options to terminate you” [sic].
Applicant: “I am just back from a trip and it would have been better to have the heads up before the Christmas break, I would not have spent that much money on a vacation” [sic].
Mr Howe: “It is upon looking at the plans last week that I decided on this” [sic].
(h) Following this conversation, Mr Howe offered the Applicant the option to “resign” instead of being terminated. If the Applicant accepted that offer, the Applicant would be paid three weeks’ notice in lieu. However, if the Applicant did not accept that offer then the Applicant would only be paid two weeks’ notice in lieu. Further (and because the Respondent had to report the Applicant’s change in employment status to the Department of Immigration and Home Affairs), Mr Howe represented that his offer of resignation (in lieu of termination) would extend the Applicant’s time to find alternative sponsored employment in Australia (i.e. before the Applicant would be in breach of his visa conditions and be required to leave the country).
(i) The Applicant told Mr Howe that he would seek legal advice before signing the Respondent’s offer.
(j) On 30 January 2020, the Applicant attended his workplace to collect his personal belongings. While he was at the workplace, Mr Howe asked the Applicant whether he would “sign” the resignation letter. The Applicant said he would not.
(k) The Applicant was never given an explanation as to why he was dismissed from his employment.
(l) The Applicant has brought proceedings against the Respondent in the “Local Court of New South Wales” for recovery of outstanding entitlements (being annual leave, superannuation, and relocation costs (the latter associated with requirements set out under the Respondent’s visa sponsorship of the Applicant)).
[15] In cross-examination by Mr Howe, the Applicant stated that he could not recall having conversations regarding the alleged performance issues or other incidents as raised by Mr Howe, did not agree with Mr Howe’s account of events, and, in any event, denied that he was ever tasked with the responsibility to supervise the work of others. 4
Relevant Law
[16] Section 385 of the Act qualifies a claim for unfair dismissal:
“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”.
[17] The Respondent has not raised any issue as to the Commission’s jurisdiction to determine this matter. Having regard to the evidence, I find that the Applicant’s claim is within the Commission’s unfair dismissal jurisdiction. Hence, the question I must answer in these proceedings is whether the Applicant’s dismissal was harsh, unjust or unreasonable.
[18] Section 387 of the Act provides what matters must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable:
“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.”
[19] I turn to consider these factors.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[20] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”, and should not be “capricious, fanciful, spiteful or prejudiced”. 5 Further, the Commission will not stand in the shoes of an employer and determine what the Commission would do if it was in the position of the employer.6
[21] The Applicant submits that there is not valid reason for his dismissal.
[22] As far as I can understand the Respondent’s position (taking into account the submissions made in the Form F3 and Mr Howe’s evidence-in-chief), the Respondent says that the Applicant’s performance did not meet the expected standards of quality for his years as an architect. Further, the Respondent says that the Applicant had become a “disruptive influence” in the workplace, and was not complying with his expected hours of work, and was not properly (or at all) supervising the work of more junior employees.
[23] Where a dismissal relates to an employee’s conduct, the reason for dismissal might be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur, or it did occur, but did not justify termination. 7 The question of whether alleged conduct took place, and what it involved, is to be determined by the Commission on the basis of the evidence in the proceedings before it.8
[24] Where the dismissal relates to an employee’s capacity (i.e. where the reason is associated or connected with the ability of an employee to do their job), 9 and there is a dispute as to whether the employee possessed the requisite capacity to perform their job, it is for the Commission to resolve that disputed issue as a matter of fact.10
[25] In my view, on the evidence, the Respondent’s submissions regarding the Applicant’s conduct and capacity are neither sustainable, nor supportable. In relation to Mr Howe, his witness evidence was vague and generalised. Further, he was unable to articulate any of the alleged incidents or issues with any particularity. Neither were such incidents or issues supported by contemporaneous objective documentary evidence.
[26] Conversely, the Applicant’s witness evidence, especially his witness evidence in cross-examination, sounded in that of genuine surprise when the alleged issues (being raised by Mr Howe) were put to him. When the Applicant repeatedly denied the issues put to him by Mr Howe, I did not take those denials as obstructive or dishonest. The Applicant appears to have denied all of the allegations because they were untrue, unparticularised and/or unsupported by evidence.
[27] On balance, I accept the Applicant’s submission that there were no genuine underperformance or conduct issues giving rise to a valid reason for his dismissal. I do so having had regard to the conflicting witness accounts (which I resolve in the Applicant’s favour), and there being no documentary evidence (or other reliable witness evidence) before me to come to any other conclusion. I point out that this finding does not mean that I consider Mr Howe’s performance and conduct issues with the Applicant to be irrelevant in this matter (see paragraph [48] of this decision).
[28] In the facts and circumstances of this case, my finding that there was not a valid reason for the Applicant’s dismissal leans strongly towards a finding that the dismissal was unjust and unreasonable.
Was the Applicant notified of the valid reason?
[29] If there is no valid reason for dismissal, then s.387(b) has no application. 11 Given that I am of the view that there was not a valid reason to justify the dismissal, this factor is not relevant and requires no further consideration.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[30] Again, as I am of the view that there is no valid reason for dismissal, this criterion is not enlivened and requires no further consideration.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[31] As noted by the Full Bench of the Fair Work Commission, “[s.387(d)] is not concerned with whether or not the employee was informed that he or she could have a support person present”.12
[32] I take the meeting between the Applicant and Mr Howe on 20 January 2020 to be the “dismissal” meeting (i.e. when the Respondent put the Applicant on notice that his employment was to be terminated). The manner in which the meeting was effectively “sprung” on the Applicant, without any indication as to what that meeting was about, denied the Applicant the right to have a support person present.
[33] In view of the Respondent’s method of organising and conducting the “dismissal” meeting, it is my view that this criterion leans toward a finding that the dismissal was unjust and harsh.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[34] To qualify as having provided an employee with a warning, the employer must have:
a) identified the relevant aspect of the employee’s performance which is of concern to the employer; and
b) made it clear (to the employee) that their employment is at risk unless the performance issue (as identified) is addressed. 13
[35] The Applicant submits that he was never warned that he was facing dismissal.
[36] The Respondent has not made a submission to the contrary. Even if I accept Mr Howe’s evidence and submissions that he did address performance issues with the Applicant between October 2019 and December 2019 (which I do not), the Respondent has made no submission, or provided any evidence, that those discussions resulted in a warning to the Applicant that he was facing termination of his employment.
[37] The Applicant’s witness evidence is that he was, for a want of a better term, “blindsided” by his dismissal (upon his return from annual leave). As stated above, the Respondent appears to have sprung upon the Applicant its decision to terminate his employment without prior warning. On the evidence, there has been a manifest failure by the Respondent to communicate with the Applicant regarding the on-going viability of this employment. In view of this failure, I find that this factor leans towards a finding that the dismissal was harsh and unjust.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[38] Whilst the Act recognises that “small businesses are genuinely different in nature both organisationally and operationally”, 14 it does not follow that such a small business employer’s procedures in effecting a dismissal can be entirely devoid of fairness. Further, the absence of a dedicated human resource management specialist does not relieve an employer from extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment”. 15
[39] Neither party made submissions directly on this point, although I note that the parties’ evidence suggests that the Respondent’s enterprise tends towards that of a small business. In any event, I find this factor to be a neutral consideration in this matter.
What other matters are relevant?
[40] Neither party made submissions as to other relevant matters for me to consider, nor am I aware of any. I therefore do not take into account any other matters.
Was the Applicant’s dismissal harsh, unjust or unreasonable?
[41] In view of my reasons above, I find that the Applicant’s dismissal was harsh, unjust and unreasonable.
Remedy
[42] The Applicant does not seek reinstatement, nor do I consider it appropriate given the fact the Applicant has returned to his native country. The issue thus turns to whether compensation should be awarded and, if so, its quantum.
[43] 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:
“392 Remedy—compensation
…
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”.
[44] I turn to consider these factors, noting that the ‘Sprigg’ formula is to be applied to arrive at an appropriate amount, 16 but if this yields a figure that is excessive or inadequate, then the considerations in s 392(2) may be revisited.
Effect of an order on the viability of the Respondent’s enterprise
[45] There is no evidence that a compensation order would have an adverse effect on the company’s viability.
Length of the Applicant’s service
[46] The length of the Applicant’s service is just over 22 months. This is a relatively short period of employment.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
[47] As stated by a majority of the Full Court of the Federal Court in He v Lewin:
“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”. 17
[48] In this decision, I find that it is reasonable to conclude that the Applicant would have continued in his employment, but for his dismissal, for a further three months beyond his termination date. Whilst the Applicant’s work visa was valid until mid-September 2020, I accept that at the time of the Applicant’s dismissal there was significant animosity between the Applicant and Mr Howe, which would be highly unlikely to see the employment relationship continue for more than three months. If Mr Howe had managed the performance of the Applicant in an appropriate way (i.e. a documented performance process, identifying particulars of underperformance, and the opportunity to rectify those particulars), I consider that the Applicant’s employment would have continued for no more than three months.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
[49] The Applicant must provide evidence that he has taken reasonable steps to minimise the impact of his dismissal. 18 What is reasonable depends upon the circumstances of the case.19
[50] There is evidence that the Applicant has taken many steps to mitigate the loss suffered because of his dismissal by seeking alternative employment. This includes some 47 job applications, and seven job interviews. One interview was successful, however, the job offered was withdrawn before the Applicant’s commencement, due to the impact of the COVID-19 pandemic. 20 I am satisfied that the Applicant took reasonable steps to mitigate his loss.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
[51] The evidence is that the Applicant has received no income since his dismissal. 21 I am satisfied that the Applicant has earnt no income since his dismissal.
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
[52] There is no evidence of the amount of remuneration that the Applicant is likely to earn in the period between the making of the order for compensation and the payment of compensation. I therefore cannot be satisfied that the Applicant will earn any remuneration between the making of the order for compensation and the payment of compensation.
Other relevant matters
[53] I am not aware of other relevant matters to be considered in this decision. Whilst the COVID-19 pandemic might be a relevant factor to be taken into account, there is no evidence of the impact of this pandemic upon the Respondent’s business, or upon the Applicant’s employment at the Respondent’s business related to or arising from the pandemic. I am unable to take into account the general impact of the COVID-19 pandemic absent cogent evidence from the Respondent as to the actual effect of the pandemic on its business.
Shock, distress etc. disregarded
[54] I confirm that, as required by the Act, the lost remuneration amount to be ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to the Applicant by the manner of her dismissal.
Calculation of compensation
[55] As noted by the Full Bench in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries: 22
“[t]he well-established approach to the assessment of compensation under s.392 of the [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)]. This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages”.23
[56] 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; and
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.
[57] I will now consider the calculation of compensation following the methodology in Sprigg. First, there is the question of the estimated remuneration that the Applicant would have received had he not been dismissed. The agreed gross weekly earnings of the Applicant are $1,678.17 ($87,500/52.14 weeks), which for three months (13 weeks) of further employment, gives a gross total of $21,933.21 ($1,678.17 x 13).
[58] Next, it is necessary to deduct monies earned by the Applicant since his dismissal. Given there have been no monies earnt, no deduction is to be made in this regard.
[59] Then there is the question of a percentage deduction for contingencies and the vicissitudes of life. These principles were summarised on Roos v Winnaa Pty Ltd. 24 A deduction for contingencies applies a discount to an assessment of future economic loss so as to account for future unknown matters which might adversely affect earning capacity. Such a deduction is usually applied after the assessment of the period for which the employee would have remained employed. It applies to any future estimate of loss of earnings. I consider that a reduction for contingencies should be made and that 15 percent is appropriate in this case. This figure is commonly used by the Commission in assessing compensation.25 This brings the figure of $21,933.21 down to a new gross total of $18,643.23.
[60] I have considered the impact of taxation on the gross amount, however, it is not necessary for me to specify a post-tax amount.
Is the amount of compensation to be reduced on account of misconduct?
[61] If I am satisfied that any misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by s.392(3) of the Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
[62] I have made no findings of misconduct by the Applicant. However, a Full Bench of the Commission has observed that, “[s.392(3) of the Act] seems to require such consideration even if the Commission has found there was no valid reason for the person's dismissal.”26 The Full Bench goes on to say that: “if there was no valid reason for the dismissal we think that may be relevant to the Commission's decision as to the ‘appropriate’ amount by which to reduce the amount of compensation the Commission would otherwise order.”27 In view of the foregoing, I consider that a reduction of 10 percent is appropriate in this case. This brings the figure of $18,643.23 down to a final gross total of $16,778.91.
Summary
[63] The total amount of gross compensation to be awarded to the Applicant is the sum of $16,778.91 (i.e. less applicable taxation as required by law).
Conclusion
[64] For the reasons stated above, I am satisfied in the circumstances of this case that a remedy should be ordered, but that reinstatement is inappropriate. I am satisfied that an order for compensation is appropriate. I will order the compensation set out in paragraph [63] of this decision, subject to the deduction of any taxation required by law, plus an amount for 9.5 percent superannuation on the gross compensation sum, to be paid by the Respondent within 28 days of the date of any order made.
[65] An order giving effect to this decision will be published and issued separately to this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant appeared for himself.
Mr Christopher Howe (Director, Howe Architects Pty Ltd) appeared for the Respondent.
Hearing details:
12 May 2020
Printed by authority of the Commonwealth Government Printer
<PR719576>
1 See paragraph [2] of this decision.
2 Transcript at PN111 to PN112.
3 Ibid, at PN113.
4 Ibid at PN140 to PN147. See also PN151 to PN155, and PN165 to PN167.
5 Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (2000) IR 371 at 373.
6 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
7 Edwards v Justice Giudice (1999) 94 FCR 561; (1999) 169 ALR 89; [1999] FCA 1836 at [7].
8 King v Freshmore (Vic) Pty Ltd Print S4213 [2000] AIRC 1019 at [23] to [24].
9 Crozier v AIRC (2000) 50 AILR 4-488; [2001] FCA 1031 at [14].
10 See more broadly: Jetstar Airways Ltd v Neeteson-Lemkes[2013] FWCFB 9075; CSL Limited v Chris Papaioannou[2018] FWCFB 1005
11 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) at [41]; Read v Gordon Square Child Care Centre Inc[2013] FWCFB 762 (Acton DP, Deegan C and Gregory C) at [46] to [49].
12 Jurisic v ABB Australia Pty Ltd[2014] FWCFB 5835 at [84].
13 Fastidia Pty Ltd v J B Goodwin [2000] AIRC 223 at [43].
14 Williams v Top Image Hair Design[2012] FWA 9517 at [40].
15 Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C) at [21].
16 See Ellawala v Australian Postal Corporation (AIRCFB, Print S5109, 17 April 2000) at [33]; and see Bowden v Ottrey Homes Cobram and District Retirement Villages Inc[2013] FWCFB 431.
17 Ibid, at [58].
18 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].
19 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.
20 Applicant’s Affidavit, 23 July 2020.
21 Applicant’s Affidavit, 23 July 2020, at [62].
22 [2016] FWCFB 7206, at [16].
23 Ibid at [16], citing Sprigg v Paul’s Licensed Festival Supermarket (1988) 88 IR 21 and Bowden v Ottrey Homes Cobram and District Retirement Villages[2013] FWCFB 431.
24 [2018] FWCFB 7394, at [36] and [37].
25 Ellawala v Australian Postal Corporation (AIRCFB, Print S5109, 17 April 2000).
26 Read v Gordon Square Child Care Centre Inc [2013] FWCFB 762, [83].
27 Ibid.
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