Henry Armour v Mader Contracting Pty Ltd - [2023] FWC 2844

[2023] FWC 2844

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Henry Armour
v

Mader Contracting Pty Ltd

(U2022/5218)

COMMISSIONER SCHNEIDER

PERTH, 29 OCTOBER 2023

Application for an unfair dismissal remedy

On 2 May 2023, the Fair Work Commission (the Commission) issued a Decision [[2023] FWC 1034][1] finding that Mr Henry Armour (the Applicant) had been unfairly dismissed by his employer Mader Contracting Pty Ltd (the Respondent) pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act).

Subsequently, the parties were directed to file submissions in relation to remedy.

The Applicant filed submissions and evidence on 9 June 2023. The Respondent filed submissions and evidence on 21 June 2023.

A hearing in relation to the remedy was held by the Commission, on 28 June 2023.

Remedy

In the circumstances, where I have found that the Applicant was protected by unfair dismissal at the time of being dismissed and that he was unfairly dismissed from his employment by the Respondent, I now turn to addressing the element of remedy, as prescribed under section 390 of the Act.

Accordingly, I am satisfied that the Applicant:

· made an application for an order granting a remedy under section 394;

· was a person protected from unfair dismissal; and

· was unfairly dismissed within the meaning of section 385 of the Act,

Subject to the prescribed requirements under section 390 of the Act, I will consider ordering the Applicant’s reinstatement or the payment of compensation to the Applicant if satisfied that such an order is appropriate in all the circumstances of the matter.

Legislation

Under section 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.

Further, section 392 of the Act provides:

“392 Remedy—compensation

Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FWC 2844
Decision Date: 29 OCTOBER 2023

CaseChat Overview and Summary

In the matter of Henry Armour v Mader Contracting Pty Ltd, the Fair Work Commission was required to decide on the appropriate remedy for an unfair dismissal claim. The Commission had earlier found that Mr Armour had been unfairly dismissed by his employer, Mader Contracting Pty Ltd. The central legal issue was whether the remedy should be reinstatement or compensation, and if so, the quantum of compensation. The Commission considered submissions from both parties regarding the appropriateness of reinstatement and the factors relevant to calculating compensation. The Commission concluded that reinstatement was not appropriate due to mutual contention and the passage of time since the dismissal. It was also determined that compensation was appropriate given the financial hardship suffered by the Applicant.

The Commission meticulously applied the statutory framework, including sections 390, 391, and 392 of the Fair Work Act 2009. It assessed various factors such as the effect of the order on the employer’s viability, the length of service, potential remuneration, and efforts to mitigate loss. The Commission found that the Applicant would have earned approximately $7,164 had the dismissal been handled procedurally. Given the Applicant's misconduct, the compensation was reduced by 50%, resulting in a final order of $3,582. This amount was also subject to a statutory cap of half the high-income threshold, which was not exceeded. The Commission issued an order for the Respondent to pay the determined compensation amount within 14 days.

Orders