James MacGregor v Drummers Dream Music Center T/A Dream Music Australia

[2018] FWC 1301

[2018] FWC 1301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

James MacGregor

v

Drummers Dream Music Center T/A Dream Music Australia

(U2017/9255)

Deputy President Booth SYDNEY, 5 MARCH 2018

Application for an unfair dismissal remedy - determination of compensation.

1. Further to my earlier decision in this matter,[1] in which I found that the Applicant, Mr James MacGregor, was unfairly dismissed by the Respondent, Drummers Dream Music Centre T/A Dream Music Australia (Drummers) and that it would be appropriate to award compensation to Mr MacGregor. I issued directions to the parties to file further material in relation to compensation, addressing s.392 of the Fair Work Act 2009 (the Act).

1. Material was received from Mr MacGregor on 12 January 2018. No material was received from Drummers.

1. Mr MacGregor’s submissions outline his financial reliance on his continued employment with Drummers during the period from his dismissal on 19 August 2017 until 1 January 2018, due to the fact that he would be engaged in certain training from 1 January onwards that would prevent him from earning any income for the following nine months. He seeks to be compensated for his loss of earnings for that period, and provides a calculation for that loss.

1. I have calculated the amount of compensation to be paid to Mr MacGregor on the information available to me, based on the criteria contained in the s.392 of the Act and the contemporary application of the Sprigg formula.[2]  I have decided that Drummers must pay Mr MacGregor the amount of $ 10,687.50 after taxation, plus 9.5% superannuation to be paid into the fund that Mr MacGregor nominated during his employment.

Effect of the order on the viability of the employee’s enterprise: s.392(2)(a)

1. As noted in my earlier decision Drummers was a Small Business Employer at the time of Mr MacGregor’s dismissal. The business is a going concern. There is no evidence before me to suggest that an order for compensation will affect the viability of the business.

1. In the absence of evidence as to the financial situation of the business and the likely effect of an order for compensation I am unable to find that an order for compensation would affect the viability of Drummers.

Length of service: s.392(2)(b)

1. Mr MacGregor was employed by Drummers for over 5 years. I consider that Mr MacGregor’s length of service should not affect the amount of compensation to be ordered.

Remuneration that would have been received: s.392(2)(c)

1. Mr MacGregor was preparing for admission to the NSW Police Force.  Mr MacGregor stated in his submissions of 12 January 2018 that he:

‘had no intention of leaving Dream Music until January 2018, at which time I would be going down to Goulburn to start at the Police Academy … Having Mr. Nicholas dismiss me before January 1^st has put a massive financial strain on me and my family as we have very little money now to be able to support us during the time I will be away.’

1. Mr MacGregor specified in his submissions of 12 January 2018 that he intended to complete Police Academy training which would have required him to terminate his employment with Drummers by 1 January 2018.

1. I consider that but for his dismissal on 19 August 2017 Mr MacGregor would have remained employed by Drummers until 1 January 2018, a period of nineteen weeks.

1. Mr MacGregor stated in his submissions that his wage amounted to $750 per week after taxation. No evidence was provided of his gross wage. The amount Mr MacGregor would have received over the nineteen week period is $14,250 after taxation plus superannuation.

Mitigating efforts: s.392(2)(d)

1. In considering whether Mr MacGregor has taken steps to mitigate the loss suffered as a result of the dismissal I should take into account whether Mr MacGregor acted reasonably in the circumstances.[3]

1. When questioned at hearing about what he had been doing since 19 August 2017 until 4 December 2018, Mr MacGregor’s response was:

‘From then until now I have been in training and doing a lot of preparations for entering the New South Wales Police Force.’[4]

1. Had Mr MacGregor remained employed by Drummers he would have had to undertake this training and preparation whilst employed. I do not consider that it was reasonable for Mr MacGregor not to make any efforts to find employment of any kind following his dismissal from Drummers. The period of time in question, being nineteen weeks, was not so insignificant that pursuing some form of alternative employment would not have been feasible, and would have been beneficial to the financial situation of Mr MacGregor and his family.

1. I have decided to deduct one quarter of the wages that would have been earned in the period in question between 19 August 2017 until 1 January 2018 (19 weeks) on this account.

Remuneration earned: s.392(2)(e)

1. Mr MacGregor gave evidence that he had not earned any income since the time of his dismissal.

1. Accordingly it is not appropriate to make any deductions from the amount of compensation owed to Mr MacGregor based on remuneration earned.

Income likely to be earned: s.392(2)(f)

1. Mr MacGregor gave evidence that he intended to commence training at the Police Academy on 1 January 2018; that this training would take nine months to complete; and, that whilst he was undertaking this he did not anticipate he would receive any income.

1. I consider that Mr MacGregor was not reasonably likely to earn any income during the period between this order for compensation being made and the actual compensation being received.

Other matters: s.392(2)(g)

1. As contingencies only apply to the anticipated period of employment, and that has now expired, it is not appropriate to make any further change to the amount of compensation for contingencies.

Misconduct: s.392(3)

1. I have not found that misconduct on the part of Mr MacGregor contributed to his dismissal. I do not make any deduction of compensation on this basis.
   
   

Shock, Distress; s.392(4)

1. I note that the amount of compensation calculated does not include a component for shock, humiliation or distress. Section 392(4) of the Act expressly prohibits an award of compensation containing such a component.

Compensation cap: s.392(5)

1. I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by Mr MacGregor, or to which Mr MacGregor was entitled,  for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

1. The amount of compensation ordered does not exceed either 26 weeks’ pay or the high income threshold.  Accordingly no deduction is appropriate.

Compensation to be ordered

1. In calculating the compensation I deduct $3,562.50 on account of Mr MacGregor’s failure to mitigate his loss.

1. I order that Drummers pay $10,687.50 after taxation, plus 9.5% superannuation, in compensation.  The superannuation contribution is to be paid to the superannuation fund that Mr MacGregor nominated during his employment.

1. I will issue an order to this effect.

DEPUTY PRESIDENT

<PR600850>

[1] [2017] FWC 6916.

[2] Sprigg v Paul’s Licensed Festival Supermarkets (1998) 88 IR 21; Bowden v Ottray Homes Cobram and District Retirement Villages Inc T/A Ottray Lodge [2013] FWCFB 431; McCulloch v Calvary Health Care Adelaide[2015] FWCFB 2267.

[3] Ellawala v Australian Postal Corporation Dec 421/00 M Print S5109.

[4] Transcript PN194.

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