[2016] FWC 3448

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Havea Ngaluafe
v
Shye Clothing Pty Ltd
(U2015/345)

COMMISSIONER LEE

MELBOURNE, 3 JUNE 2016

Application for relief from unfair dismissal.

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Mr Havea Ngaluafe (the Applicant) claims that he was unfairly dismissed from his employment with Shye Clothing Pty Ltd (the Respondent).

[2] The application was lodged 28 January 2015. The matter was listed for hearing before me on 15 June 2015. Prior to the hearing I listed the matter for a preliminary conference by telephone. Terms of settlement were discussed and a document setting out potential terms of settlement was forwarded to the parties. The Respondent did not sign the terms of settlement. Subsequently, the matter was listed for conference on two occasions in an attempt to establish the intentions of the Respondent. However, the Respondent did not appear at those conferences, nor has the Respondent replied to any email communication since that time.

[3] Ultimately, the matter was listed for hearing before me on 30 March 2016. There was no appearance from the Respondent at the hearing despite an Order Requiring a Person to Attend the Fair Work Commission being issued to Mr Mikel Elsegood. It is apparent that the Respondent has not accepted the terms of settlement discussed and has refused to sign the terms of settlement. In the circumstances the matter proceeded to hearing. The Applicant was represented by his wife Ms Erwin. The Applicant gave evidence on his own behalf. During the hearing the Applicant gave evidence that he understood that the Respondent “no longer exists”. The Applicant’s source of this information was from his new employer. Beyond that, I have no other information in relation to the status of the Respondent.

Background

[4] The Applicant was employed on a permanent full time basis as a screen printer for the Respondent from 2 September 2013 up until he was dismissed on 7 January 2015. The Applicant provided a letter dated 7 January 2015, signed by Mr Mike Elsegood, Director of the Respondent, addressed to the Applicant which read as follows:

“Dear Havea

Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by Shye Clothing Pty Ltd (the employer) of its operational requirements, and what this means for you.

As a result of a company restructure, your position of Screen Printer is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection on your performance.

Your employment will end immediately. Based on your length of service, your notice period is two weeks. In lieu of receiving that notice, you will be paid the sum of $1274.00.

You will also be paid your accrued entitlements and any outstanding pay, including superannuation, up to and including your last day of employment.

Employees and employers may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at

Yours sincerely,

Mikel Elsegood
Director”

[5] The Applicant asserts that he has not been made redundant, but that he was simply instantly dismissed and that his dismissal was unfair.

The law to be applied

[6] Section 394(1) of the Act provides that a person who has been dismissed may apply to the Fair Work Commission (the Commission) for an order under Division 4 of the Act granting a remedy for unfair dismissal.

[7] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that;

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; 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.”

[8] Section 396 of the Act provides that before considering the merits of an application for an unfair dismissal remedy order, the Commission must determine some other matters. Section 396 is as follows;

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 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;

(d) whether the dismissal was a case of genuine redundancy.”

[9] An effect of s.396 of the Act is that if a dismissal was a case of genuine redundancy, the Commission does not need to consider whether it is satisfied the dismissal was harsh, unjust or unreasonable.

[10] Section 389 of the Act sets out the meaning of “genuine redundancy” and is as follows:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

[11] The Explanatory Memorandum to the Fair Work Bill 2008 says the following in respect of the now s.389:

“Clause 389 – Meaning of genuine redundancy

1546. This clause sets out what will and will not constitute a genuine redundancy. If a dismissal is a genuine redundancy it will not be an unfair dismissal.

1547. Paragraph 389(1)(a) provides that person's dismissal will be a case of genuine redundancy if his or her job was no longer required to be performed by anyone because of changes in the operational requirements of the employer’s enterprise. Enterprise is defined in clause 12 to mean a business, project or undertaking.

1548. The following are possible examples of a change in the operational requirements of an enterprise:

● a machine is now available to do the job performed by the employees;

● the employer’s business is experiencing a downturn and therefore the employer only needs three people to do a particular task or duty instead of five; or

● the employer is restructuring their business to improve efficiency and the tasks done by a particular employee are distributed between several other employees and therefore the person’s job no longer exists.

1549. It is intended that a dismissal will be a case of genuine redundancy even if the changes in the employer’s operational requirements relate only to a part of the employer’s enterprise, as this will still constitute a change to the employer’s enterprise.

1550. Paragraph 389(1)(b) provides that it will not be a case of genuine redundancy if an employer does not comply with any relevant obligation in a modern award or enterprise agreement to consult about the redundancy. This does not impose an absolute obligation on an employer to consult about the redundancy but requires the employer to fulfil obligations under an award or agreement if the dismissal is to be considered a genuine redundancy.

1551. Subclause 389(2) provides that dismissal is not a case of genuine redundancy if it would have been reasonable in all circumstances for the person to be redeployed within the employer’s enterprise, or within the enterprise of an associated entity of the employer (as defined in clause 12).

1552. There may be many reasons why it would not be reasonable for a person to be redeployed. For instance, the employer could be a small business employer where there is no opportunity for redeployment or there may be no positions available for which the employee has suitable qualifications or experience.

1553. Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy. However, if the reason a person is selected for redundancy is one of the prohibited reasons covered by the general protections in Part 3-1 then the person will be able to bring an action under that Part in relation to the dismissal.”

[12] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. Section 387 is as follows:

“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.”

[13] Section 390 of the Act sets out when the Commission may order a remedy for an unfair dismissal as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[14] Section 391 of the Act sets out matters relevant to an order for reinstatement. Section 392 of the Act sets out matters relevant to an order for compensation as follows:

“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.

Note: subsection 392(5) indexed to $64,650 from 1 July 2013

(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.”

[15] With regard to s.385(a), s.386 of the Act sets out the meaning of ‘dismissed’. It is clear the Applicant was dismissed within the meaning of the Act.

[16] The Applicant was employed from 2 September 2013 until 7 January 2015, approximately 16 months. The Applicant has completed a period of employment of at least the minimum employment period (sections 382(a) and sections 383). The application was lodged within the time period specified in s.394(2)(a).

[17] The Respondent submitted that the Applicant is covered by the Graphic Arts, Printing and Publishing Award 2010. The Applicant submits that he is covered by the Textile, Clothing, Footwear and Associated Industries Award 2010. While I think it more likely that the Applicant is covered by the Textile, Clothing, Footwear and Associated Industries Award 2010 it is not necessary to determine the matter.

[18] At the time of the dismissal the Applicant’s remuneration was $37,648.00 per annum which is far less than the high income threshold.

[19] It is clear the Applicant is a person protected from unfair dismissal.

[20] With regard to s385(d) of the Act, it is clear from the documentation that the Respondent has treated the Applicant’s dismissal as a case of genuine redundancy. The Applicant disputes that he was in fact made redundant. Section 385(d) of the Act is therefore relevant in this matter.

[21] Accordingly, the matter for determination is whether the dismissal was a genuine redundancy. If I find that the dismissal was not a genuine redundancy, I must determine whether the dismissal was harsh, unjust or unreasonable.¹

The evidence:

[22] The Applicant gave evidence on his own behalf. In summary his evidence was as follows.

[23] The Applicant was a screen printer throughout his period of employment. On 7 January 2015, three days after returning to work after the Christmas break, Mr Elsegood met with the Applicant and advised him the company was restructuring as it wasn’t doing well, he was losing money and that he was letting the Applicant go because the company was purchasing a new machine that could strip 100 screens in an hour. 2 At the time the Applicant was made redundant the machine had not yet arrived in the workplace.

[24] The Applicant was advised that he was no longer required and paid two weeks in lieu of notice. He was not paid redundancy pay as the Respondent asserts that the business is a small business, though this is a claim disputed by the Applicant. Mr Elsegood advised the Applicant that he was very sorry about making him redundant.

[25] On 25 February 2015 the Applicant noticed an advertisement from the employer for a permanent full time screen printer and the duties and responsibilities appeared to be the same as the Applicant’s position. The Respondent’s submission is that the advertisement is not for the Applicant’s job but to replace one of two employees Rob and Andrew, who left shortly after the Applicant was dismissed. However, the Applicant’s evidence is that Rob and Andrew were not screen printers. The Applicant’s evidence is that Rob was the factory manager and Andrew was the Supervisor. They only did screen print work when there was a shortage of staff. 3

[26] The Respondent made reference to the plan to restructure the business by purchasing a new screen printing machine. The purchase of the machine seems on the Applicant’s submissions to be a key part of the restructure of the operations of which the Applicant’s redundancy was a part. However, the Respondent also submits that as of April 2015 when the submissions were made, that they had not purchased the machine as it had received bad reviews and they were awaiting the delivery of a display machine before they made any decisions whether to purchase the machine.

[27] The Applicant’s evidence is that he was not given any warnings in regard to his performance with the company, that there was no discussion with the employer about the opportunity to be redeployed to another role or consideration of any other alternative to redundancy. 4

[28] The Applicant was not advised by the company that the company was in financial difficulty other than at the time he was terminated. His evidence is that there had been no decrease in production or in the hours he was working. 5

[29] The Applicant does not seek reinstatement as “…the company no longer exists”. 6 The Applicant’s state of knowledge of this was from his new employer.7

[30] The Applicant thought that, had it not been for the dismissal that he expected to work for the Respondent for a long time. 8

[31] After the Applicant was made redundant, he made extensive efforts to look for work and also undertook a security guard course to better his chances of getting employment. 9 The security guard course involved 30 days of training.10 The Applicant joined a rugby club to make friends and see if the contacts he made there might help with gaining employment. The Applicant eventually secured employment on 4 June 2015 on a full time on salary of $42,701.36. 11

The requirement to consult

[32] As discussed earlier, it is clear that the Applicant is covered by either the Textile, Clothing, Footwear and Associated Industries Award 2010 or the Graphic Arts, Printing and Publishing Award 2010. Both awards provide a Consultation Term. The Respondent’s submissions conceded that the requirement to consult in accordance with the term was not followed. The Respondent submitted that the requirement was “onerous” given the size of the company and it “…would not have been feasible/required to effect a genuine redundancy”. 12 The Applicant’s evidence is that there would likely have been opportunities identified for him to continue working as an outcome of a consultative process.

Was the Applicant’s dismissal a case of genuine redundancy?

[33] A persons dismissal is a case of genuine redundancy if the persons employer no longer required the persons job to be performed by anyone because of changes in the operational requirements of the employers enterprise. 13 The onus is on the employer to prove that, on the balance of probabilities, the redundancy was due to changes in operational requirements.14

[34] In this case, the Respondent has not appeared at the hearing. I only have the evidence of the Applicant. The Applicant was cogent and forthright in his evidence and I have no reason to doubt the evidence he has given.

[35] It is clear on the evidence that there was no consultation as is required under the terms of either relevant modern awards. The Respondent’s submission that to undertake the consultation required was too onerous is rejected. In order to be a genuine redundancy, the employer must comply with any obligation imposed by an applicable modern award or enterprise agreement to consult about the redundancy. The Respondent’s failure to do so means that the termination is not a genuine redundancy.

[36] As to whether the Applicant’s job was no longer required to be performed by anyone due to operational requirements, it is not clear what the operational requirement was. While the purchase of a machine was clearly part of the restructure to replace the Applicant’s job, it is apparent that some months after the departure of the Applicant the machine had not been purchased and there was considerable uncertainty as to whether it would ever be purchased.

[37] The advertisement in February for the position of screen printer appears to be identical to the job occupied by the Applicant. While the Respondent submits that this position was to replace one of two people who left the organisation, the evidence of the Applicant is that the two people named were not screen printers, other than on a fill in basis at times of labour shortage. Rather they were engaged in more administrative duties. The evidence of the Applicant is that there was no discussion of a financial downturn until he was dismissed and that production levels and his working hours had not altered.

[38] Considering all of the evidence, I am not satisfied on the balance of probabilities that the employer no longer required the Applicant’s job to be done by anyone because of changes in the operational requirements of the employers enterprise. For these reasons, I am not satisfied that this was a case of genuine redundancy.

Was the dismissal harsh, unjust and unreasonable? (s.385(b))

[39] As set out above, the criteria for considering whether a dismissal was harsh, unjust or unreasonable is set out in s.387 of the Act.

Section 387(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);

[40] Having found that this was not a case of genuine redundancy, there was no valid reason for the dismissal in evidence.

Section 387(b) - whether the person was notified of that reason.

[41] The Applicant was notified of the reason for the dismissal on the day that he was dismissed.

Section 387(c) - whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person.

[42] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for the dismissal there needs to be a finding that there is a valid reason for the dismissal.¹⁵ In this case, I am not satisfied that there was such a reason.

Section 387(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.

[43] The Applicant did not suggest that he requested a support person. This is a neutral consideration.

Section 387(e) - if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal.

[44] There is no evidence that the dismissal related to unsatisfactory performance.

Section 387(f) - the degree to which the size of the employer’s enterprise would be likely to impact on procedures followed in effecting the dismissal and Section 387(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

[45] The Applicant’s evidence is that there were 17 employees employed by the Respondent at the time of the dismissal. The Respondent has made submissions that it does not have a HR department, specialist or expert due to the size of the business. The Respondent’s submissions refer to a phone call to the Fair Work Ombudsman to determine if they were liable to pay redundancy pay to the Applicant.

[46] The Respondent seemed to be aware of the requirement to consult over the purported redundancy but did not do so or even attempt to do so. Their submissions to the Commission suggest an awareness of what constitutes a genuine redundancy.

[47] Overall, I am not satisfied that either the size of the enterprise or the lack of dedicated human resources expertise would have impacted on the procedures in effecting the dismissal.

Section 387(h) - any other matters FWA considers relevant.

[48] There are no other considerations.

Conclusion as to the nature of dismissal

[49] I am not satisfied there was a valid reason for the dismissal. The Applicant was notified of the reason but as I have found that the Applicant was not in fact redundant, there is no valid reason. There was suggestion the Applicant sought a support person and no issue raised relevant to the Applicant’s performance. I have considered the size of the Respondent’s enterprise and the fact that it did not have specialist human resources expertise. However, I am not satisfied that either the size of the enterprise or the lack of dedicated human resources expertise would have impacted on the procedures in effecting the dismissal.

[50] In all of the circumstances I find that the dismissal was harsh, unjust and unreasonable.

Remedy

[51] The relevant provisions of the Act pertaining to remedy are contained in s.390 of the Act and have been reproduced already above.

[52] It is also necessary to consider the Objects of Part 3-2 of the Act especially s.381(c) of the Act which provides that an Object of that Part of the Act is to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

[53] The presumption in the legislation is that should a dismissal be found to be unfair, that reinstatement is the primary remedy and that compensation is a secondary consideration if reinstatement is not appropriate.

[54] In this matter, the Applicant does not seek reinstatement. His reasons for doing so were simply put as being that the employer no longer exists. Clearly reinstatement is not an appropriate remedy.

[55] Having determined that reinstatement is not appropriate I must consider what compensation, if any, is payable, in lieu of reinstatement.

[56] The Act provides for compensation as a remedy for unfair dismissal. Section 392 of the Act has already been reproduced above.

[57] In all of the circumstances, I consider that the award of some amount of compensation is appropriate in this matter.

[58] In determining the amount of compensation, I must have regard to “all the circumstances of the case” including each of the paragraphs in s.392(2) of the Act as set out above. No one matter is paramount but regard must still be had to each of them.¹⁶

[59] The general approach to the calculation of compensation was well set out by the Full Bench in Tabro Meat Pty Ltd v Kevin Heffernan¹⁷ and I will follow that approach in determining this matter.

Section 392(2)(c) - the remuneration that the person would have received or would have been likely to receive, if the person had not been dismissed.

[60] The Applicant’s annual earnings were $37,648.00 for a forty hour week plus 9.5% superannuation. I will use this amount as the basis for calculating the amount of compensation to be awarded in this case.

[61] I have no submissions from the Respondent as to how long it was expected the employment relationship would have continued were it not for the dismissal taking place. When the Applicant was asked by me, were it not for the dismissal, how long he expected to continue working for the Respondent, he replied that he expected to work for the respondent for a long time. 18

[62] I have no reason to not accept the evidence of the Applicant on this point. I think it is reasonable to assume that, but for the dismissal, that in all of the circumstances the employment relationship would have continued. However, as I have been made aware by the Applicant, the Respondent ceased to exist at some point. The exact point in time this occurred is not clear. Certainly the Respondent was still operating as at 12 June 2015 when they participated in a conference before me to attempt to resolve the matter. However, there was no response from the Respondent in July of 2015 when my chambers sought to contact the Respondent.

[63] The Applicant’s employment ended on 7 January 2015. I accept the evidence of the Applicant that had it not been for the dismissal that he expected to be employed there for a considerable period of time. However, the apparent demise of the business would have ended his employment. Having considered all of the circumstances, I am satisfied that the Applicant would have been employed for a further 6 months with the Respondent.

[64] Accordingly, I calculate the remuneration that the Applicant would have received or would have been likely to receive, if his employment had not been terminated, at $18,824.00 plus 9.5% superannuation.

Section 392(2)(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 s.392(2)(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

[65] In the circumstances of this matter, subsections 392(2)(e) and 392(2)(f) can be dealt with together. The Applicant was unemployed from the date of his termination on 7 January 2015 until 4 June 2015, a period of approximately 5 months. From 4 June 2015 until at least the end of the 6 month period of anticipated employment, the Applicant was employed with a new employer on a base salary of $42,701.36. Therefore, the remuneration earned by the Applicant at the new employer for the relevant time period is the amount earned from 4 June 2015 until the end of the anticipated period of employment which is 7 July 2015. I estimate that amount to be $3,695.31. The Applicant was also paid two weeks’ pay in lieu at the time of the dismissal which has a value of $1,448.00.

[66] In Ellawalla v Australian Postal Corporation¹⁹, with respect to a precursor provision, the Full Bench stated that “[o]nly monies earned during the period from termination until the end of the anticipated period of employment are deducted”.

[67] A deduction is therefore appropriate of $5,143.31 representing the monies earned or likely to be earned during the period from termination until the end of the anticipated period of employment. This deduction results in an amount of $13,680.69 gross plus 9.5% superannuation.

Section 392(2)(g) - any other matter that FWA considers relevant

[68] Ordinarily a deduction for contingencies is appropriate.²⁰ Contingencies only apply to the anticipated period of employment. In this matter the anticipated period of employment has long since passed. In the circumstances a deduction for contingencies is unwarranted.

[69] There are no other matters that are relevant to the determination of compensation other than ss.392(2)(a),(b) and (d), 392(3) and 392(5) of the Act. I will turn to those factors now.

Section 392(2)(a) - the effect of the order on the viability of the employer’s enterprise

[70] There is evidence from the Applicant that the Respondent no longer exists based on a conversation with his current employer. However, I have no other evidence as to the status of the Respondent.

Section 392(2)(b) - the length of the persons service with the employer

[71] The Applicant was employed by the Respondent for approximately 16 months. While this is not a particularly long period of employment, it is not so short as to warrant a further deduction.

Section 392(2)(d) - the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[72] Evidence was provided by the Applicant as to the efforts he went to in the period after the dismissal to secure alternative employment. His evidence was that he made extensive efforts to secure employment using on line recruitment service. The Applicant also undertook an extensive course in security services in order to increase his chances of being employed. I am satisfied that the Applicant made reasonable efforts to mitigate the loss and there is no basis for a further deduction for this reason.

Misconduct (s.392(3))

[73] I have found that the Applicant was not dismissed for a valid reason and that no misconduct was in evidence. Therefore, there is no basis to make a further deduction for misconduct.

Compensation Cap (s.392(5))

[74] The compensation cap is set in section 392(5) of the Act. The amount ordered to be paid by the Commission must not exceed the lesser of: the total amount of remuneration either received by the person, or to which the person is entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, and half the amount of the high income threshold immediately before the dismissal.

[75] In this case, the provisional amount is less than the compensation cap and no further deduction is required.

Conclusion and order as to remedy

[76] I find that reinstatement is not an appropriate remedy in this case.

[77] I find that an order for compensation is appropriate.

[78] I am satisfied that an order for payment of compensation by the Respondent of $13,680.69 gross plus 9.5% superannuation less tax as required by law, to the Applicant in lieu of reinstatement is appropriate in all the circumstances of the case. It accords a fair go all round to both the Respondent and the Applicant. The compensation payment, less any required deduction in taxation, is to be made within 14 days of this decision.

[79] An order PR581220 will be issued concurrently with this decision.

COMMISSIONER

Appearances:

H Ngaluafe on his own behalf with his wife G Erwin

No appearance from the Respondent

Hearing details:

2016.

Melbourne.

March 30.

Final written submissions:

1 S.385(b) Fair Work Act 2009 (Cth)

2 Exhibit E1, Witness Statement of Havea Hgaluafe, [6]

3 PN69-74

4 PN90-92

5 PN95

6 PN100

7 PN102

8 PN104

9 PN105

10 PN118

11 Letter from Rebecca Orr of Machine Screen Printers dated 1 April 2016

12 Respondents Outline of Submissions filed 28 April 2015 [13]

13 S.389(1)(a)) Fair Work Act 2009 (Cth)

14 Kieselbach v Amity Group Pty Ltd (unreported, AIRC, Hamilton DP, 9 October 2006) PR973864 [34]

15 Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].

16 Tempo Services Limited v T.M. Klooger and Others, PR953337, [22]

17 [2011] FWAFB 1080.

18 PN104

19 Ellawalla v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109

20 Slifka v J W Sanders Pty Limited (1995) 67 IR 316 at 328.

Printed by authority of the Commonwealth Government Printer

Havea Ngaluafe v Shye Clothing Pty Ltd

[2016] FWC 3448

3 JUNE 2016

DECISION