James Haas v Sports Warehouse Australia Pty Ltd
[2025] FWC 746
•14 MARCH 2025
| [2025] FWC 746 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s 394—Unfair dismissal
James Haas
v
Sports Warehouse Australia Pty Ltd
(U2024/11977)
| COMMISSIONER LIM | PERTH, 14 MARCH 2025 |
Application for an unfair dismissal remedy – dismissal found to be unfair – compensation awarded.
What is this decision about?
This decision is about Sports Warehouse Australia Pty Ltd’s decision to dismiss Mr James Haas for unsatisfactory performance and whether it was unfair.
I held a determinative conference on Wednesday 15 January 2025 to hear the matter. Mr Haas represented himself. Mr Hayden Gibson, Managing Director, represented Sports Warehouse Australia and gave evidence.
Having considered the relevant evidence and submissions of the parties, I find that Mr Haas was unfairly dismissed. I find it appropriate to award him $10,558.40.
My detailed reasons follow.
Evidence
2.1 Mr Haas’ employment
Sports Warehouse Australia operates Tennis Only, a physical and e-commerce retail business for tennis supplies and apparel. There are Tennis Only stores across Australia, including in Myaree and Nedlands in Perth, Western Australia. Mr Haas worked at both the Myaree and Nedlands stores in various retail positions since 2018.
At the time of his dismissal, Mr Haas was employed as a Retail Senior Team Member on a part-time basis.[1] Mr Haas worked Monday, Tuesday, Friday and Saturday. His weekday hours were 9:00am to 5:30pm and 8:30am to 4:30pm on Saturdays. Mr Haas reported directly to Mr Gibson.
2.2 Phone usage and punctuality
Sports Warehouse Australia says that one of the reasons why Mr Haas was dismissed was due to problems with his phone usage during work hours. Another reason was his punctuality.
Mr Gibson’s evidence during the determinative conference was that Mr Haas was late to work 50% of the time and normally by five to eight minutes. Mr Gibson says that Mr Haas was also frequently on his phone during work hours. Further, Mr Gibson’s evidence is that he repeatedly spoke to Mr Haas about both issues and asked him to set a better example for other employees as a senior member of staff.
Mr Haas admits that during his six years working for Sports Warehouse Australia he would be late to work occasionally and would use his mobile phone at work at times. However, he denies that he was late 50% of the time. With regard to mobile phone usage, Mr Haas’ evidence is that he would use his personal phone during work hours to contact regular Tennis Only customers. Further, that his personal phone use for personal matters was not excessive and was the same as other employees.[2]
The parties agree that Mr Gibson never issued Mr Haas with any formal warning regarding punctuality or his phone usage (or indeed, any other matter).
Mr Haas’ evidence is that the only instance where Mr Gibson raised his phone usage and punctuality was when Mr Haas asked for a pay rise in late February/early March 2024. Mr Haas says that he approached Mr Gibson and asked if there were any issues with his performance. Mr Gibson said there were no issues. Mr Haas then asked Mr Gibson if he could have a pay rise.
Both parties agree that Mr Gibson then told Mr Haas that he needed to improve his punctuality and stay off his phone during his shifts. Mr Gibson also told Mr Haas that all staff would be receiving a 5% pay increase.[3]
After this discussion, Mr Haas says that he made a conscious effort to arrive early to work and limit his phone usage on shift. Mr Haas also says that in August 2024, the Nedlands Store Manager commended him for his improved punctuality.[4]
There was some contention between the parties as to whether Mr Haas had ever been made aware of Sports Warehouse Australia’s ‘Retail Guidelines’, which is a policy document that was rolled out in mid-2024. Contrary to Sports Warehouse Australia’s assertion in Mr Haas’ termination letter, Mr Haas says that he has never received or been made aware of any of Sports Warehouse Australia’s policies.[5]
The Retail Guidelines relevantly state that the expectations of the team include, “Punctuality – Be on time and ready 5 mins before shift”; “Phones – Are NOT to be used on the shop floor – Inform management if you need to use or receive important calls during your rostered shift”; and “Internet to be only used for self development – Product knowledge, information on products and training. It’s not to be used to for personal searches unrelated to our business during a rostered shift.”[6]
Ultimately, I find it is irrelevant whether Mr Haas explicitly received a copy of the Retail Guidelines or was aware of them. This is because the points identified in [15] are well-accepted and generally known. Mr Haas did not need a formal piece of paper specifying that punctuality in a retail environment is important, or warning against using mobile phones for personal use on the shop floor.
Having heard from the parties, I find that Mr Haas’ issues with tardiness and using his personal phone at work were enough to be noticed, but not at the frequency that Mr Gibson asserted. I found Mr Haas’ acknowledgement that he was occasionally late to work and would use his personal phone from time to time to be more compelling. I also accept his evidence that after his conversation with Mr Gibson regarding a pay rise, he worked to improve his conduct in both regards and that this was acknowledged by the Nedlands Store Manager.
2.3 19 July 2024 absence
Over Sunday 14 July 2024 to Tuesday 16 July 2024, Mr Haas texted Mr Gibson to let him know that he was unwell and couldn’t attend work.[7]
On Friday 19 July 2024, Mr Haas was rostered to work. However, he did not attend work as he was still unwell, and due to his illness, had not woken up to notify Mr Gibson. At 11:46am, Mr Gibson messaged Mr Haas asking him if he was at work that day. Mr Haas informed him that he was still unwell and would be going to the doctor that afternoon as his illness was getting worse. Mr Haas then sent a medical certificate to Mr Gibson certifying that Mr Haas was unfit for work.
Mr Haas returned to work on Monday 22 July 2024. The parties agree that Mr Gibson did not raise any issues with Mr Haas about not attending work on Friday 19 July 2024.
2.4 The tennis tournament and 7 September absence
On 26 July 2024, Mr Haas requested to take annual leave from Friday 6 to Sunday 22 September 2024 to string at a tennis tournament. Mr Gibson approved this request.
On Thursday 22 August 2024, the organiser of the tennis tournament informed Mr Haas that he could work the tournament on a part-time basis, but that they could not confirm the exact hours they needed him until the day of. Mr Haas says this is common as it is difficult to predict the number of racquets that will need stringing each day.[8]
Mr Haas’ account is that on Tuesday 3 September 2024, he reminded Mr Gibson of his scheduled annual leave. Mr Haas explained to Mr Gibson that the tournament only needed him on a part-time basis and offered to come into work at Sports Warehouse Australia when he wasn’t needed at the tournament. Mr Haas’ evidence is that he made it clear to Mr Gibson that he would basically be ‘on call’ and wouldn’t know when the tournament needed him until the day of. Mr Haas said that Mr Gibson agreed to this, and that Mr Gibson asked him to keep him informed so that he could deduct the relevant hours from Mr Haas’ annual leave.[9]
Mr Gibson agrees that there was a conversation on Tuesday 3 September 2024. He could not remember what was said verbatim, but his evidence is that he would have said that it was OK for Mr Haas to leave during a shift as long as it was “appropriate for him to leave” and there was cover for his shift. Mr Gibson’s evidence is that he would never have approved Mr Haas working ‘on call’ with short notice.
Mr Gibson’s further evidence is that on Friday 6 September 2024, the Nedlands Store Manager asked him who would be covering for Mr Haas if he needed to leave the next day for the tournament. Mr Gibson told the store manager that Mr Haas could not leave the store during his shift. Mr Haas’ evidence is that the store manager did not share this message with him. I accept both Mr Gibson’ and Mr Haas’ evidence.
On Saturday 7 September 2024, Mr Haas attended work at the Nedlands store. At 10:50am, he was called in to work at the tournament.
Mr Haas texted Mr Gibson at 11:44am before he left the store to let him know his hours for the day so that Mr Gibson could calculate what to deduct from his annual leave. Mr Gibson replied shortly after, asking if Mr Haas had left the shop. Mr Haas confirmed that he had, “as discussed”. Mr Gibson’s reply was, “No[,] not discussed that [you] would leave without notice on a Saturday”. The last text between the two was Mr Haas’ reply, “Discussed on two occasions. You approved leave so maybe it’ll be easier if I don’t help out during my annual leave”.[10]
On Sunday 8 September 2024, Mr Haas messaged Mr Gibson, “Hey mate haven’t heard back from you but just a reminder I’m on leave tomorrow”.[11]
On Monday 9 September 2024, Mr Gibson called Mr Haas. Mr Gibson expressed that he had issues with Mr Haas leaving his shift on Saturday 7 September 2024. Mr Gibson also made a comment about them “parting ways”.
On Thursday 19 September 2024, Mr Haas messaged Mr Gibson to let him know that the tournament had finished and that he could resume work earlier than scheduled. The pair exchanged messages with Mr Gibson asking Mr Haas to call him.
There was no further communication between Mr Haas and Mr Gibson until Monday 23 September 2024, when Mr Haas messaged Mr Gibson, “Hey Hayden, as you may be aware my leave from 6/09-22/09 ended yesterday and normally I’d be back to work at Myaree tomorrow. Based on your last text message, it seems there’s a miscommunication regarding my return to work. If you could please clear this up in writing for me that would be greatly appreciated. If I don’t hear from you, I’ll come in tomorrow as per usual”.[12]
Mr Gibson replied a few minutes later with, “I tried to call twice but no reply. I will send an email tomorrow. But to be clear you are no longer employed at Sports Warehouse so don’t go in tomorrow.” Mr Gibson also asked Mr Haas to confirm his email address.[13]
On Tuesday 24 September 2024, Mr Gibson emailed Mr Haas a letter notifying him of his dismissal. The letter relevantly states:[14]
“Dear James
Termination of your employment
I am writing to you about the termination of your employment with Sports Warehouse Australia.
On several occasions you have been warned about arriving late to work. Despite multiple warnings you have consistently arrived late to work over the past 12 months.
On several occasions you have been warned about using your personal mobile phone during work hours. Despite multiple warning[s] you are consistently on your phone during work hours.
On July 19th 2024 you didn’t attend your scheduled shift at Tennis Only Nedlands. No notice was given that you would not attend the shift. You were the only person scheduled on that day and as a result of not attending the shop it not open [sic].
On Sept 7th 2024 you were scheduled to work 8.30am – 4.20pm at Tennis Only Nedlands. You left the shift at 11.45am. No prior notice was given you would leave the shift.
Sports Warehouse has policies in place around work start times, personal phone usage during work hours and actually turning up to shifts. All of which you have been informed of many times.
I consider that your performance is unsatisfactory and have decided to terminate your employment for the above reasons: [sic].
Your employment will end immediately on Sept 24th 2024.
As a good will gesture you will paid 2 weeks wages in lieu. You will also be paid your accrued entitlements which is 18 hours. Both the 2 weeks in lieu and accrued entitlements will be paid on Oct 7th 2024.
Yours sincerely,
Hayden Gibson
Managing Director”
Considering the communications between the parties, I find that Mr Haas’ termination took effect on Tuesday 24 September 2024. This is supported by Mr Haas’ payslips for the period Monday 26 August 2024 to Sunday 8 September 2024, and Monday 9 September 2024 to Monday 22 September 2024. Neither payslip show Mr Haas being paid out his accrued annual leave or any termination related payments.[15]
Preliminary matters
There is no contest, and I find that:
a)Mr Haas had completed the minimum employment period. Sports Warehouse Australia initially submitted that Mr Haas was not covered by an award. I put to Sports Warehouse Australia that I considered it extremely unlikely that a retail employee in a retail business would not be covered by the General Retail Industry Award 2020. Sports Warehouse Australia agreed. I find that Mr Haas was covered by the GRIA at the time he was dismissed. Mr Haas was thus protected from unfair dismissal pursuant to s 382 of the Fair Work Act 2009(Cth);
b)Mr Haas’ application was made within the time prescribed in s 394(2) of the Act;
c)Sports Warehouse Australia was not a small-business employer within the meaning of the Act; and
d)The dismissal was not a case of genuine redundancy.
Relevant legislation
Section 385 of the Act provides that:
“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.”
Section 387 of the Act requires me to take into account certain criteria in determining whether Mr Haas’ dismissal was harsh, unjust or unreasonable. I set out my consideration below.
Submissions and consideration
5.1 Section 387(a) – was there a valid reason for the dismissal related to Mr Haas’ capacity or conduct?
A valid reason is one that is “sound, defensible or well-founded”[16] and should not be “capricious, fanciful, spiteful or prejudiced”.[17]
Where the reason for dismissal relates to conduct the Commission must find that the conduct occurred and that the conduct justified dismissal. Whether the conduct relied upon as a reason for dismissal actually occurred is to be determined based on the evidence,[18] and it is to be assessed on the balance of probabilities[19] taking into account the gravity of the allegations.[20] Where the reason for dismissal relates to capacity, the appropriate test is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively.[21]
Mr Haas submits that there was no valid reason for his dismissal. Sports Warehouse Australia submits that Mr Haas was constantly late to work and on his phone at work; didn’t turn up to work on Friday 19 July 2024; and left mid-shift on Saturday 7 September 2024. Sports Warehouse Australia effectively submits that this constituted a valid reason for Mr Haas’ dismissal.
My factual findings regarding Mr Haas’ issues with punctuality and using his phone are outlined in [17] of this decision. I do not find that these issues by themselves are sufficiently serious to constitute a valid reason for dismissal.
I do not find that Mr Haas’ non-attendance on Friday 19 July 2024 constituted a valid reason for dismissal. Mr Haas’ evidence is that he was not in a position to inform Mr Gibson of his absence earlier than Friday 19 July 2024 because he felt more unwell on the Friday compared to the prior two days. I accept his evidence. During the determinative conference Mr Gibson confirmed that he genuinely believed that Mr Haas was unwell that day and did not contest that Mr Haas had COVID-19.
Similarly, I do not find that Mr Haas leaving his shift on Saturday 7 September 2024 constituted a valid reason for dismissal. I find that both Mr Haas and Mr Gibson were truthful in their evidence to me on this issue, however, there was a miscommunication between the two. From Mr Haas’ text messages I find that he had discussed with Mr Gibson working ‘on call’ hours around his stringing obligations.
When considered separately and in totality, Mr Haas’ performance issues and the non-attendance issues that Sports Warehouse Australia relies on do not constitute a valid reason for dismissal.
5.2 Section 387(b) and (c) – notification of valid reason and opportunity to respond
An employee protected from unfair dismissal should be notified of the reason to terminate their employment before the decision to dismiss is made.[22] Failure to do so impacts on their ability to respond to that reason before the decision to terminate is made.[23]
It is clear from the evidence that Sports Warehouse Australia did not notify Mr Haas of the reason for his dismissal prior to the event, nor was Mr Haas given the opportunity to respond. Mr Haas’ dismissal was procedurally unfair.
5.3 Section 387(d) – any unreasonable refusal by the Respondent to allow a support person
Sports Warehouse Australia did not refuse a request for a support person, but Mr Haas was terminated via email with no meeting. I find that this is a neutral consideration in this case.
5.4 Section 387(e) – warnings concerning performance
Mr Gibson’s evidence is that he frequently spoke to Mr Haas regarding his punctuality and phone usage, but was unable to provide any detail regarding dates or what exactly was discussed in such a way that persuaded me that they constituted warnings. The parties agree that when Mr Haas requested a pay rise, Mr Gibson initially informed him that there were no issues with his performance, before then commenting to Mr Haas that he needed to improve his punctuality and refrain from using his personal phone at work. I find that this did not constitute a formal warning given the context of the comments.
5.5 Section 387(f) and (g) – size of the Respondent’s enterprise and whether the absence of dedicated human resource management specialists or enterprise would be likely to impact on the procedures followed
Sports Warehouse Australia has approximately 80 employees.[24] Mr Gibson’s evidence is that Sports Warehouse Australia does not have any dedicated Human Resources staff. I find that the lack of dedicated HR staff did impact on the lack of procedural fairness afforded to Mr Haas.
5.6 Section 387(h) – any other matters the Commission considers relevant
It was not contested that Mr Haas worked for Sports Warehouse Australia for six years and had not been subject to any disciplinary action.
5.7 Is the Commission satisfied that Mr Haas’ dismissal was harsh, unjust or unreasonable?
I have made findings in relation to each matter in s 387 as relevant to this case. The considerations in ss 387(a), (b), (c) and (e) weigh in favour of a finding that the dismissal was unfair, whilst s 387(g) weighs in favour of a finding that the dismissal was fair. The other considerations in s 387 are neutral.
The absence of a valid reason or procedural fairness in Mr Haas’ dismissal leads to my conclusion that his dismissal was harsh, unjust and unreasonable. It is harsh because termination is a disproportionate consequence for Mr Haas’ issues with punctuality and phone usage in the circumstances. Mr Haas’ issues were not frequent enough to be serious, and he had made a concerted effort to improve his performance prior to his dismissal. It is unjust because Mr Haas was genuinely unwell on Friday 19 July 2024 and he had spoken to Mr Gibson about working around the stringing tournament in advance. It is unreasonable because Sports Warehouse Australia dismissed Mr Haas with no procedural fairness.
Remedy
I now turn to the issue the remedy, if any, that should be ordered in the circumstances. Section 390 of the Act sets out the circumstances in which an order for reinstatement or compensation may be made:
“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.”
I am satisfied pursuant to ss 390(1) and (2) that Mr Haas made an application for unfair dismissal, is a person protected from unfair dismissal and was unfairly dismissed.
Mr Haas does not seek reinstatement on the basis that the relationship between the parties has broken down. I am satisfied that reinstatement is not appropriate in the circumstances.
I turn now to consider s 390(3)(b). As stated by the Full Bench in Nguyen v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australia Chapter,[25] the question of whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one.[26] Section 390(3)(b) requires that all circumstances of the case to be taken into consideration. As to what this consideration requires, I respectfully adopt the reasoning of the Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge[27] at [40]:
“As to whether an order for the payment of compensation by Ottrey to Ms Bowden is appropriate in all the circumstances of the case, we note that the phrase “all the circumstances of the case” in s.390(3)(b) of the FW Act is also contained in s.392(2). However, in s.392(2) the phrase is followed by a reference to the matters in ss.392(2)(a) to (g) and s.392(2)(g) concerns “any other matter that the FWC considers relevant.” In this case, we think the matters in ss.392(2)(a) to (g) embrace all the circumstances of the case relevant to our consideration of whether a compensation order is appropriate. In Henderson v Department of Defence it was recognised that the same matters may serve different purposes in s.170CH of the WR Act, as it was prior to the Work Choices amendments…”
In this regard, it is necessary to take into account all the circumstances of the case, including the specific matters identified in ss 392(2)(a)-(g) and to consider the order relevant requirements of s 392.
The well-established approach to the assessment of compensation under s 392 is to apply the “Sprigg Formula”, derived from the decision of the Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.[28] This approach was articulated in the context of the current legislative framework in Bowden. I adopt the Bowden methodology but observe that Bowden and the formulation in Sprigg serve as a guide, rather than a decision rule.
The approach in Sprigg can be summarised as follows:
Step 1: Estimate the remuneration the employee would have received, or would have been likely to receive, if the employer had not terminated the employment.
Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure to mitigate loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 5: Apply the legislative cap on compensation.
6.1 Remuneration that Mr Haas would have received, or would have been likely to receive, if he had not been dismissed: s 392(2)(c)
As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the employee 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.”[29]
As per the payslips Mr Haas provided, he earned $2,003.20 gross per fortnight, or $1,001.60 gross per week for 32 hours’ work. Mr Haas’ submission is that he would have continued working with Sports Warehouse Australia indefinitely. At the determinative conference, Mr Gibson stated that if not for the dismissal, Mr Haas would have continued working for Sports Warehouse Australia “long-term”.
I find that Mr Haas would have continued working for Sports Warehouse Australia up to the date of the determinative conference on Wednesday 15 January 2024. This is 16 weeks and is the “anticipated period of employment”.[30]
I calculate the remuneration that Mr Haas would have been likely to receive working for Sports Warehouse Australia during the anticipated period of employment to be $16,025.60 gross, plus superannuation.
6.2 Remuneration earned and remuneration likely to be earned: ss 392(2)(e)-(f)
Mr Haas has not been able to find a permanent job in the tennis industry since Sports Warehouse Australia dismissed him. His evidence is that it is difficult to find an analogous job to the one he had with Sports Warehouse Australia, as it is the only dedicated specialist tennis store in Western Australia.
Mr Haas’ evidence is that he has contacted local coaching providers and contacts in the tennis industry for work but has not been successful in finding a new role. For income, Mr Haas has provided tennis racquet restring and customisation services to local players. Mr Haas provided a weekly breakdown of the income he has earned from this, which shows that since his dismissal, he has earned a total of $3,464.00 gross.
Sports Warehouse Australia did not contest Mr Haas’ evidence. I accept Mr Haas’ evidence. I also note that Sports Warehouse Australia paid Mr Haas’ two weeks in lieu of notice, which comes to $2,003.20.
Deducting $3,464.00 and $2,003.20 from $16,025.60 leaves $10,558.40.
6.3 Length of Mr Haas’ service: s 392(2)(b)
Sports Warehouse Australia employed Mr Haas for six years. I consider that Mr Haas’ length of service does not support reducing or increasing the amount of compensation ordered.
6.4 Other matters: s 392(2)(g)
As was said in the Full Bench decision in McCulloch v Calvary Health Care Adelaide,[31] it is important to appreciate that a deduction for contingencies is applied to prospective losses, that is loss occasioned after the date of the hearing. Referring to Ellawala v Australian Postal Corporation,[32] the Full Bench in McCulloch stated that a discount for contingencies is a means of taking account of the various probabilities that might otherwise affect earning capacity. Of course, at the time of hearing, any such impact on an applicant’s earning capacity between the date of termination and the hearing will be known. It will not be a matter of assessing prospective probabilities but of making a finding on the basis of whether an applicant’s earning capacity has in fact been affected during the relevant period.
In this case, I know Mr Haas’ earnings during the anticipated period of employment. I therefore do not need to make a deduction for contingencies.
6.5 Effect of the order on the viability of Sports Warehouse Australia’s enterprise: s 392(2)(a)
Sports Warehouse Australia did not make any substantive submission on this point. There is nothing for me to consider in this regard.
6.6 Efforts of Mr Haas to mitigate the loss because of the dismissal: s 392(2)(d)
I accept that Mr Haas has made attempts to mitigate his loss, as outlined in [62] and [63] of this decision. I find that no deduction should be made.
6.7 Misconduct: s 392(3)
I have found that Mr Haas did have issues with punctuality and his phone usage at work, but that he had made efforts to rectify these issues. I find that at the time of his dismissal, there was no misconduct. There is therefore no deduction to be made in respect of s 392(3).
6.8 No component for shock, distress, humiliation or other analogous hurt: s 392(4)
I confirm that the compensation amount assessed contains no component for any shock, distress, humiliation or analogous hurt Mr Haas suffered as a result of his dismissal.
6.9 Compensation cap: s 392(5)
The amount of compensation the Commission may order is capped. If the quantum of compensation initially assessed exceeds that cap, then the Commission must reduce the compensation amount to the cap. The Act stipulates that the compensation cap is the lesser of:
(a)The amount of remuneration received by the person, or that he or she was entitled to receive (whichever is higher) in the 26 weeks before the dismissal (in this case, $26,041.60); and
(b)Half the amount of the high-income threshold immediately before dismissal ($87,500).
In this matter I am satisfied that the amount for s 392(5) of the Act is $26,041.60 and a reduction is not required.
6.10 Instalments: s 393
Sports Warehouse Australia did not make any submissions regarding the payment of compensation in instalments.
6.11 Conclusion on compensation
Having regard to all the circumstances of this matter applied to the considerations in s 392 of the Act, I consider it is appropriate to make an award of compensation to Mr Haas as summarised below:
Consideration Calculation Gross Amount Anticipated employment period 16 weeks x $1,001.60
$16,025.60 Deduct monies earned since termination Payment in lieu of notice = $2,003.20
Earnings = $3,464
$5,467.2 TOTAL $10,558.40
Given my findings above, I am satisfied in the circumstances that reinstatement is inappropriate, but a remedy is appropriate. In my view, the application of the Sprigg formula does not lead to an amount that is excessive or clearly inadequate, and I am satisfied that the level of compensation is an amount that is appropriate having regard to all the circumstances of the case.[33] Accordingly, I order that Sports Warehouse Australia pay to Mr Haas compensation in the amount of $10,558.40 to be taxed by law, plus make an 11.5% contribution to Mr Haas’ nominated superannuation account.
The compensation payment is to be made within 14 days of this decision. An order to this effect will issue separately.[34]
COMMISSIONER
Appearances:
J Haas, Applicant.
H Gibson for the Respondent.
Hearing details:
2025.
Perth and by Video using Microsoft Teams:
15 January.
[1] Digital Court Book (DCB) 26, [5].
[2] Ibid 27, [14]-[15].
[3] Ibid 28, [20].
[4] Ibid, [21].
[5] Ibid 28, [18].
[6] Ibid 65.
[7] Ibid 35.
[8] Ibid 30, [36].
[9] Ibid, [37].
[10] Ibid 37.
[11] Ibid.
[12] Ibid 46.
[13] Ibid 47.
[14] Ibid 34.
[15] Ibid 38-39.
[16] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333, (1995) 62 IR 371, [373].
[17] Ibid.
[18] King v Freshmore (Vic) Pty Ltd Print S4213, [24].
[19] Edwards v Justice Giudice [1999] FCA 1836, [6]-[7].
[20] Briginshaw v Briginshaw [1938] 60 CLR 336.
[21] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport, Print S5897, [62], [(2000) 98 IR 137].
[22] Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897, [70]-[73], [(2000) 98 IR 137].
[23] Ibid, [75].
[24] DCB (n 1) 55.
[25] [2014] FWC 3574.
[26] Ibid, [9].
[27] [2013] FWCFB 431.
[28] (1998) 99 IR 21.
[29] He v Lewin [2004] FCAFC 161, [58].
[30] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[31] [2015] FWCFB 2267.
[32] [2000] AIRC 1151.
[33] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
[34] PR785239.
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