Isabelle Cowley v The Trustee for the Hawthorn Furphy Farms Trust T/A Van Eyk Horses

[2020] FWC 5139

[2020] FWC 5139

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Isabelle Cowley
v
The Trustee for The Hawthorn Furphy Farms Trust T/A Van Eyk Horses
(U2020/2015)

COMMISSIONER MCKINNON MELBOURNE, 24 SEPTEMBER 2020

Application for unfair dismissal remedy – whether compensation is appropriate – amount of compensation.

[1] On 30 July 2020, I decided that Isabelle Cowley had been unfairly dismissed and that reinstatement was not an appropriate remedy. That leaves the question of whether compensation is an appropriate remedy and if so, the amount of compensation.

[2] Compensation is the appropriate remedy because Ms Cowley suffered loss as a result of the approach adopted by Van Eyk Horses in dealing with its concerns about her conduct and/or performance. If a different approach had been adopted, it is likely that the issues between them could have been resolved in a way that allowed the employment to continue at least for a time.

[3] Van Eyk Horses submits that an order for the payment of compensation would affect the viability of its business which is already experiencing financial loss and is in ‘hibernation’ due to the COVID-19 pandemic. It has reduced staff numbers from seven to three. It relies on a profit and loss statement from April 2020 and evidence of jobkeeper payments for the remaining three unidentified employees. The April profit and loss shows a net improvement in the business trading position between March and April 2020 in the order of $35,000, despite trading at a loss in that period and with income at very low levels. The property is also apparently affected by a family law dispute although the relevance of this is not apparent.

[4] Ms Cowley submits that the business remains viable, producing evidence of competition sponsorship in the amount of $40,000 and posts of horses said to have been sold in recent times. Ms Cowley also submits that the position of Farm Manager remains at the Lancefield Farm, a position she would have continued to hold but for the dismissal. The latter submission is inconsistent with evidence at the hearing that the position of Farm Manager has since been downgraded to general farm hand.

[5] I am satisfied that the effect of an order for compensation will affect the financial position of Van Eyk Horses but there is insufficient evidence to demonstrate any causal relationship between business viability and an order for compensation or the degree to which an order is likely to affect the viability of the business.

[6] Ms Cowley was employed for approximately 2 years. It is neither a short or long period of service.

[7] The events leading to dismissal also triggered a dispute over legal ownership of a horse known as ‘CJ’ which is now the subject of a police investigation. But for those events, the dispute is unlikely to have arisen at the time. I consider it likely that the dispute would still have arisen as Ms Cowley began to compete the horse in February and March 2020 with some success. Ultimately either the horse dispute or circumstances related to the pandemic are likely to have brought an end to the employment relationship in the near future. I estimate that Ms Cowley would have remained in employment for a further two months. Over this period, in her capacity as employee, Ms Cowley would have earned $8,333.33 gross inclusive of superannuation.

[8] I am satisfied that Ms Cowley has taken reasonable steps since the dismissal to mitigate her loss. She successfully applied for a part-time riding job with an indoor arena, but the offer was revoked once pandemic-related restrictions were introduced and there was a halt on the conduct of indoor sports. She was looking for other employment at the time of the hearing. On 27 June 2020, Ms Cowley commenced part-time work in her mothers’ business, earning $200.00 per week in addition to ‘social security payments’, which I take to be a reference to jobseeker payments. The income from her part-time work, calculated as 13 weeks income, will reduce the amount of compensation by $2600.00 gross.

[9] The period of time that has elapsed between the dismissal and this decision renders the question of contingencies moot. I will leave the question of taxation to the parties and the Australian Taxation Office.

[10] Ms Cowley was entitled to two weeks’ notice of termination but was not given notice and was not paid in lieu of notice.

[11] There was no relevant misconduct on the part of Ms Cowley that would warrant a reduction of the compensation amount. While Van Eyk Horses has since accused Ms Cowley of sending dog faeces to Ms Furphy in the mail, there is no evidence of it and the allegation is strongly denied. The accusation is not a relevant consideration.

[12] I determine the amount of compensation as follows:

Consideration	Outcome	Gross amount
Remuneration likely to have been received but for termination	2 months’ salary inclusive of superannuation	$8333.33
Less monies earned since termination	13 weeks at $200/week	$2600.00
Discount for contingencies	Nil	$0.00
Impact of taxation	Nil	$0.00
Adjustment for misconduct	Nil	$0.00
Total compensation amount		$5733.33 gross

[13] I am satisfied that the amount of compensation is appropriate having regard to all the circumstances of the case. It reflects my estimate of Ms Cowley’s likely loss had the dismissal not occurred. It does not include any amount for shock, distress or the like, and none was claimed by Ms Cowley. The compensation amount does not exceed the statutory cap.

[14] I will order Van Eyk Horses to pay Ms Cowley $5733.33 gross less taxation as required by law. The amount will be payable within 28 days of the date of this decision.

COMMISSIONER

Appearances:

L Faust of Counselfor the Applicant.

A Howard for the Respondent.

Hearing details:

2020.
Melbourne (video hearing):
June 16.

Printed by authority of the Commonwealth Government Printer

<PR723057>