Itzhak (Isaac) Agami v Innovative Systems and Design Group
[2019] FWC 5579
•24 SEPTEMBER 2019
| [2019] FWC 5579 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Itzhak (Isaac) Agami
v
Innovative Systems and Design Group
(U2019/3632)
DEPUTY PRESIDENT LAKE | BRISBANE, 24 SEPTEMBER 2019 |
Application for an unfair dismissal remedy – procedural unfairness – compensation awarded
Introduction[1] On 1 April 2019 Mr Itzhak (Isaac) Agami (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy alleging that he had been unfairly dismissed from his employment with Innovative Systems and Design Group (the Respondent). The Applicant seeks financial compensation.
When can the Commission order a remedy for unfair dismissal?
[2] Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
[4] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[5] I am satisfied that the Applicant was a person protected from unfair dismissal at the time of being dismissed. The material discloses that the Applicant has completed at least the minimum employment period and that his annual rate of earnings is less than the high income threshold. I therefore turn my attention to the second limb of section 390 of the Act.
When has a person been unfairly dismissed?
[6] 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
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Background
[7] The uncontested factual background to the matter is as follows:
• the Applicant commenced working for the Respondent on 15 July 2016 as an electronics assembler;
• in March 2018 the Applicant was diagnosed with cancer and underwent a number of procedures in relation to this illness;
• it took a number of weeks and months for the Applicant to recover from this illness and the associated procedures that were brought about by the illness;
• since March 2018 the Applicant had been off work for a large period of time as a consequence of this illness;
• the Applicant was terminated from his employment on 28 March 2019.
[8] The contested factual background to the matter is as follows:
• the Applicant was dismissed for a valid reason or reasons;
• the Applicant received warnings regarding his work performance and conduct;
• the Applicant was afforded procedural fairness in the disciplinary and termination process.
The hearing
[9] There being contested facts involved, the Commission is obliged by section 397 of the Act to conduct a conference or hold a hearing. I considered it appropriate to hold a hearing for the matter. The parties appeared before me in person in Brisbane on 30 July 2019 for me to hear the matter.
Permission to appear
[10] The Applicant was self-represented and the Respondent sought permission to be represented before the Commission by a paid agent, one Mr David Lyons.
[11] Section 596(1) of the Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission. I determined that the matter was sufficiently complex and the Commission would be assisted by the Respondent being represented in this matter. Further, I was of the mind to consider that the Respondent being represented would ensure efficiency in the cross-examination of the Applicant and his witness, so as to enable the Commission to better understand the contested facts in the matter.
Witnesses
[12] For the Applicant, the Applicant and Mr Brandon Hellmech, a former work colleague of the Applicant provided evidence by way of witness statements.
[13] For the Respondent, Ms Holleigh Ross, the HR Coordinator for the Respondent, and Mr Shane Kelly, General Manager for the Respondent, provided evidence by way of witness statements.
Submissions
[14] The Applicant filed submissions in the Commission on 11 June 2019. The Respondent filed submissions in the Commission on 21 June 2019.
[15] Final written submissions were directed by me to be filed by the Applicant and the Respondent on 19 August 2019. The Respondent complied with this direction. The Applicant did not. Therefore no final written submissions were received from the Applicant.
Has the Applicant been dismissed?
[16] A threshold issue to determine is whether the Applicant has been dismissed from their employment. It is not in dispute that, and I am satisfied that, the Applicant has been dismissed within the meaning of section 385 of the Act.
Initial matters
[17] Under section 396 of the Act, the Commission is obliged to decide the following matters 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;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
[18] I am satisfied that the Application was made in time, that the Applicant was a person protected from unfair dismissal, that this is not a matter which concerns the Small Business Fair Dismissal Code, nor is this a matter concerning genuine redundancy.
Was the dismissal harsh, unjust or unreasonable?
[19] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
[20] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 1
[21] I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
[22] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 2 and should not be “capricious, fanciful, spiteful or prejudiced.”3
[23] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.4 “The question of whether the 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. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.” 5
Submissions
[24] The Respondent submitted that the Applicant was dismissed for both performance and conduct issues and that there was a valid reason for the dismissal related to the Applicant’s conduct. According to the Respondent, the performance issues became conduct issues insofar as the Applicant did not follow reasonable and lawful instructions to improve his performance. The Respondent submitted that this amounted to misconduct. The Respondent submitted that the “final straw” so to speak, was the Applicant’s non-attendance at work on 27 March 2019. The following day, the Applicant’s employment was terminated summarily.
[25] The Applicant submitted that there was no valid reason for the dismissal related to the Applicant’s conduct because he had not received any written warnings regarding his performance and that his absences from work were either authorised (medical leave) or unavoidable. The non-attendance at work on 27 March 2019 was, according to the Applicant, unavoidable, due to a lack of a vehicle and his impecuniosity to afford public transport.
Evidence
[26] The Respondent provided a timeline of communications – both verbal and written – which demonstrated that it had provided the Applicant with notice about performance issues and about the Applicant’s unauthorized absences from work. 6 One written warning indicates that issues regarding the Applicant’s poor performance were disciplinary in nature and could involve further disciplinary action being taken against the Applicant. The warning letters that were filed in the Commission by the Respondent are accompanied with contemporaneous diary notes or emails, the subject matter of which confirms the contents of those letters. The performance issues identified in the warning letters are not necessarily significant on face value, such as the Applicant starting work earlier than he was required to7, but they confirm a pattern of behaviour wherein the Applicant was cautioned not to do something verbally, but nonetheless persisted in that behaviour. The verbal warnings provided to the Applicant are outlined in the written warning letters. The same can be said for the warning letter of 18 February 2019, which confirms defiance from the Applicant of a number of verbal warnings not to park his car in front of a roller door, a safety concern.8
[27] The Applicant provided evidence that he did not receive any written warnings regarding his performance or conduct, and that verbal warnings were also either not given or insignificant for the purposes of amounting to any disciplinary action. Under cross-examination, the Applicant was emphatic that he had never received the warning letters stating that they were “fraudulent” 9 and that he would be “willing to take a lie detector about [not receiving the warning letters].”10
[28] With respect to the Applicant’s unauthorized absence from work on 27 March 2019, the evidence was not disputed by the parties. A text message, in Hebrew and not translated for the Commission, apparently confirmed the reasons the Applicant’s reason for not attending work on this day – being impecuniosity – and the Applicant confirmed this at the hearing. 11
Findings
[29] I find that:
• on balance of probabilities, the Applicant was provided with a written warning on 14 September 2018 relating to his performance, reliability and conduct, which confirmed a number of verbal warnings regarding same.
• on the balance of probabilities, the Applicant was provided with a written warning on 18 February 2019 regarding his conduct and not following a reasonable direction from management regarding the parking of his car at work, which confirmed a number of verbal warnings regarding same.
• the Applicant’s absence from work on 27 March 2019 was unauthorised and without reason. The Applicant’s reasons for not attending work; namely his lack of vehicle and his impecuniosity, are not valid reasons to not attend for work. By way of commentary, financial stress impacts many members of the community. However, it is a fundamental and paramount duty of a permanent, full time employee that they have enough money to be able to afford the cost of transport to get to work. It is not an excuse to avoid work to simply say that you have no financial means of getting to work. I am satisfied that no warnings were needed regarding the Applicant’s conduct with respect to this reason so say that it was not a valid reason for dismissal, given that the Applicant had already been provided with warnings regarding his unauthorised absences from work.
[30] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal relating to the Applicant’s misconduct, and with respect to the performance issues, the Applicant’s failure to follow reasonable and lawful requests with respect to improving his performance in the workplace, especially with respect to safety concerns of the Respondent, and about following proper processes and procedures regarding absences, amounted to misconduct which constituted a further valid reason for termination.
Was the Applicant notified of the valid reason?
[31] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 12 and in explicit13 and plain and clear terms.14
Submissions and Evidence
[32] The Applicant submitted that he was notified of the reason for his dismissal on the day of termination. During that termination meeting he was provided a termination letter that outlined the reasons for his dismissal after the termination had already occurred.
[33] The Respondent submitted that the Applicant was notified of the valid reason on the basis that they provided a letter outlining the reasons for his termination in the termination letter. The Respondent further submitted that it provided warning letters regarding the Applicant’s conduct which were ultimately reasons for the termination. Copies of the Applicant’s termination letter and the warning letters provided to the Applicant by the Respondent were filed as evidence by the Respondent.
Findings
[34] I find that:
• the Respondent was required to inform the Applicant of the reasons for his termination before the decision to terminate him was made. As this was not done, the Applicant was not afforded procedural fairness.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
[35] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 15
[36] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 16 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.17
Submissions
[37] With respect to this factor, the Applicant submitted that he was not provided an opportunity to respond to the reasons for his dismissal. This came in two forms – the Applicant not having an opportunity to respond to the warning letters (because the Applicant claimed to have never received them) and the Applicant not having an opportunity to respond to allegations of his non-attendance for work on the day before his dismissal.
[38] The Respondent submitted that the Applicant was provided with warning letters which were not responded to (and the Applicant was provided with an opportunity to respond to the contents of these warning letters), and that on the day of the Applicant’s termination, a decision had already been made to terminate the Applicant irrespective of what the Applicant said to the Respondent. 18
Evidence
[39] I have already found that on the balance of probabilities, the Applicant was provided with warning letters. I can conclude that the Applicant, through the documented verbal warnings contained within those warning letters, was provided at all material times, an opportunity to respond to the content of those letters.
[40] With respect to the Applicant’s opportunity to respond on the day of his termination, there are consistent facts between the Applicant and Respondent. The Respondent provided a termination letter to the Applicant as a mere formality. There was nothing that the Applicant could say or do at that point that would have changed the Respondent’s mind. This is confirmed in my examination of Ms Holleigh Ross about the termination meeting:
The Deputy President: I've got a few [questions]. If I take you to the final meeting on 28 March?
Ms Ross: Mm-hm.
The Deputy President: Was Mr Agami told what the meeting was about? I guess if you could step me through the process of that 28th and what happened?
Ms Ross: On the 28th?
The Deputy President: Yes?
Ms Ross: I went and collected Isaac and said, "Could you please come to Shane's office?" Myself and Shane were there with the letter, and which we sat down and handed him the letter, and then individually went over the points as to why we were terminating him, and gave him the opportunity then to just - if he wanted to say anything.
The Deputy President: So when you collected him or went to get Mr Agami, did you say, "This is a" - what the meeting was about or ?
Ms Ross: Not till we physically were in the office with the door closed, yes.
The Deputy President: And so then you announced what the meeting was about?
Ms Ross: Yes.
The Deputy President: You had the - you provided the letter to Mr Agami?
Ms Ross: Mm-hm.
The Deputy President: Was that upfront?
Ms Ross: At the beginning of the meeting.
The Deputy President: At the beginning?
Ms Ross: Yes.
The Deputy President: Then what was the process you went through? You said you went through each item?
Ms Ross: Mm-hm.
The Deputy President: You asked for a response or ?
Ms Ross: Yes, so we just said, "Look, this is a meeting today in regards to your termination", handed him the letter and then went through the details as to why we were terminating, so with regards to his previous warning, his attendance issues, the fit for work notice, parking notifications, and safety concerns, so each individual point.
The Deputy President: Yes?
Ms Ross: And then gave him the opportunity to - if he wanted to say anything to us at that stage, before we walked him offsite, I guess.
The Deputy President: Yes?
Ms Ross: To come over to his area to collect his things.
The Deputy President: So you indicated that a decision had been made to terminate him and these were the reasons why that decision had been made?
Ms Ross: Yes.
The Deputy President: Yes. So at that stage if he'd provided an explanation to each of those it still wouldn't have changed the course of the events, which was it was a termination meeting?
Ms Ross: Yes.” 19
Findings
[41] I find that:
• having regard to the matters referred to above, the Applicant was not given an opportunity to respond to the reasons for his dismissal prior to the decision being made to terminate him.
• terminating someone’s employment for performance or conduct is a significant matter and employers have an obligation to ensure that not only is procedural fairness afforded to an employee that is going through a disciplinary process, possibly involving the termination of their employment, but to also ensure that procedural fairness is seen to be being afforded to an employee. The Respondent did not discharge either of these obligations and giving the Applicant a termination letter was a mere formality.
• in small part, this is mitigated by the fact that the Applicant had already provided an explanation to the Respondent regarding his unauthorized absence from work on 27 March 2019, which he said related to his impecuniosity. However, this still does not mean necessarily that that the Applicant was afforded procedural fairness with respect to this criterion that I am required to consider and the reasons as to why the Respondent ultimately terminated the Applicant were more than this one absence alone. The Applicant needed to be afforded an opportunity to respond to all the reasons that the Respondent was terminating him.
• this amounted to procedural unfairness.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
[42] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
[43] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”20
Submissions
[44] The Respondent submitted that it did not unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal on the basis that he did not request for one to be present even once he found out the reason for the meeting.
Evidence
[45] In evidence provided by the HR Coordinator she stated that he was not given the opportunity to have a support person but she did not deny him the opportunity as he did not request one be present. 21
Findings
[46] I find that:
• The Applicant was not unreasonably denied a support person as he did not request one.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[47] This factor is relevant insofar as the Applicant’s performance issues, ultimately resulted in conduct issues, as the Applicant continually defied reasonable and lawful instructions to adhere to safety concerns of the Respondent.
[48] I have already determined that the Applicant had been warned about his unsatisfactory performance, and persisted to defy the Respondent’s warnings with respect to these matters. This ultimately became a conduct issue, which I have already considered was a valid reason for dismissal.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
[49] Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.
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?
[50] This was not a matter pressed by either party and is therefore a neutral criterion with respect to my decision.
What other matters are relevant?
[51] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[52] I do not consider that there are any other relevant matters other than the ones that I have considered relating to this application.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
[53] I have made findings in relation to each matter specified in section 387 as relevant.
[54] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 22
[55] Taking into account all material before me, I consider that the termination of the Applicant’s employment was for a valid reason, but that the Respondent lacked procedural fairness in affording the Applicant an opportunity to discuss the termination prior to dismissal.
[56] Given this lack of procedural fairness afforded to the Applicant during the dismissal process this weighs in favour of finding that the Applicant was unfairly dismissed, notwithstanding there being a valid reason for his termination. I find that the Applicant was unfairly dismissed.
Remedy
[57] The Applicant was protected from unfair dismissal at the time of being dismissed and has been unfairly dismissed, section 390 of the Act prescribes that a remedy of reinstatement or compensation is available.
[58] The primary remedy is reinstatement, however the Applicant in this case has not sought reinstatement and the Respondent has submitted that reinstatement is inappropriate, therefore I am satisfied it is not appropriate to order reinstatement (section 390(3)(a) of the Act).
[59] I must therefore consider whether it is appropriate in all the circumstances to make an order for payment of compensation (s.390(3)(b) of the Act).
[60] Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation.
“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 $61,650 from 1 July 2012
(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.”
[61] A Full Bench in McCulloch v Calvary Health Care Adelaide 23 confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg v Paul’s Licences Festival Supermarket24 remains appropriate.
[62] I will now consider each of the criteria in section 392 of the Act.
Viability: s.392(2)(a)
[63] Nothing has been put to the Commission on this issue and it is therefore not a consideration.
Length of service: s.392(2)(b)
[64] I find that the Applicant’s period of service with the Respondent, being two years and 8 months, is supportive of an award of compensation being made.
Remuneration that would have been received: s.392(2)(c)
[65] The Applicant’s remuneration with the Respondent was $1,305.00 per week (gross) plus superannuation.
[66] It is necessary for me to determine the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had he not been dismissed.
[67] I am satisfied that at the time of the dismissal that there existed a valid reason for terminating the Applicant’s employment. However, I was not satisfied that the Applicant was afforded procedural fairness insofar as the Applicant was not provided the reasons for his dismissal prior to being terminated and was not provided with an opportunity to respond to the reasons that the Respondent was terminating him prior to his termination. As such, I consider that the Applicant would have been employed for another two weeks, at most, if the Respondent had adopted a procedurally fair process with respect to the Applicant’s termination.
Mitigating efforts: s.392(2)(d)
[68] In considering whether the Applicant has taken steps to mitigate the loss suffered as a result of the dismissal, I should take into account whether the Applicant acted reasonably in the circumstances.
[69] The Commission has been made aware that the Applicant found alternative employment shortly after his termination and this is a factor which mitigates any compensation that could have been awarded.
Remuneration earned: s.392(2)(e)
[70] The Commission is aware that the Applicant has earned remuneration since his dismissal.
[71] The Applicant was paid two weeks salary in lieu of notice pursuant to the contract of employment. This is not a matter that I need to weigh up given it was a contractual entitlement in the Applicant’s contract of employment.
Income likely to be earned: s.392(2)(f)
[72] The Applicant found alternative employment shortly after his dismissal and hence this is not a consideration in awarding compensation.
Other matters: s.392(2)(g)
[73] I find it is not appropriate in the circumstances that a contingency should be applied.
Misconduct: s.392(3)
[74] The Applicant engaged in misconduct which led to a valid reason for his dismissal. This, however, I have considered a neutral factor in the awarding of compensation, given any deduction would be disproportionate to the effect that the misconduct had on the Respondent’s business – i.e. the Applicant did not attend for a day for work inconsistent with multiple warnings regarding unauthorised absences (a valid reason for termination, but, in my view, not for a deduction under this subsection).
Shock, Distress: s.392(4)
[75] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap: s.392(5)
[76] I will deal with the compensation cap below.
Conclusion on remedy
[77] After taking into account each of the relevant considerations, I find that compensation in lieu of reinstatement is appropriate in this matter. Further, I find that compensation should be assessed having regard to the factors outlined above.
[78] The compensation that arises is as follows;
Projected remuneration lost (2 weeks at $1,305.00 per week) - $2,610.00
Total $2,610.00
[79] The maximum compensation limit is the lesser of 26 weeks remuneration ($33,930) which is the statutory cap that existed at the time of the Applicant’s dismissal. The amount of compensation that arises from my findings is less than that limit. Accordingly, I find that compensation in lieu of reinstatement should comprise a payment to the Applicant of $2,610.00 plus superannuation.
Conclusion
[80] I am satisfied that the Applicant was protected from unfair dismissal and that while the dismissal was for a valid reason, the Applicant’s dismissal was procedurally unfair.
[81] I have found that reinstatement is inappropriate but that compensation of the amount determined above is appropriate in all of the circumstances.
[82] The payment of the required compensation, with the appropriate deduction for taxation, is to be made to the Applicant by the Respondent within 14 days of this decision.
[83] An order will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Itzhak Agami for the Applicant (himself)
Mr David Lyons for the Respondent
Hearing details:
30 July 2019 in Brisbane
Printed by authority of the Commonwealth Government Printer
<PR711220>
1 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
2 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
3 Ibid.
4 Edwards v Justice Giudice [1999] FCA 1836, [7].
5 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
6 For example, warning letters issued to the Applicant on 14 September 2018, 18 February 2019 and notice to the Applicant to provide medical certificates on 18 February 2019.
7 Warning letter of 14 September 2018.
8 Warning letter of 18 February 2019.
9 Transcript PN238.
10 Transcript PN291.
11 Transcript PN520 – PN525.
12 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
13 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
14 Ibid.
15 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
16 RMIT v Asher (2010) 194 IR 1, 14-15.
17 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
18 Transcript PN996.
19 Transcript PN983 – PN996.
20 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
21 Transcript PN997.
22 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
23 [2015] FWCFB 873.
24 (1998) 88 IR 21.
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