James McKinnon v Reserve Hotels Pty Ltd T/A the Crest Hotel Sylvania

[2015] FWC 926

[2015] FWC 926

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James McKinnon
v
Reserve Hotels Pty Ltd T/A The Crest Hotel Sylvania
(U2014/5153)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 9 FEBRUARY 2015

Application for relief from unfair dismissal.

[1] On 26 February 2014 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for relief from unfair dismissal was lodged by Mr James McKinnon (the Applicant) against his former employer Reserve Hotels Pty Ltd t/as The Crest Hotel Sylvania (the Respondent).

[2] The Applicant was notified of his dismissal on Monday, 17 February 2014 and it took effect on the same day. The Applicant says he commenced employment at the Respondent’s bottle-shop on 22 August 2012. He was a casual employee.

[3] In his F2 application, the Applicant stated that on Saturday, 15 February he was told, in the early afternoon, by the owner Nick Balangiannis to clean up the front of the bottle-shop area. He and another worker dismantled a broken sign and did other work but could not complete it because the bins were full and they were short on the shift. This instruction was repeated on Sunday. The Applicant was the only person on shift and could leave the bottle-shop unattended. The signs were moved later in the day when another worker came on shift. On Monday, 17 February the Applicant was called into work “for a quick meeting”. He says that the licensee and bottle-shop manager told him that the owner wanted the Applicant dismissed because he had not followed the owner’s instructions to clean up.

[4] The Applicant submits that he was given no warnings or letter of dismissal. He was given no opportunity to explain what had happened.

[5] The Respondent, in its F3 response, says that the Applicant commenced employment on 23 August 2013, although this appears to have been an error, and that the dismissal did not take effect until 22 February 2014. The Respondent states that it had three full-time and 15 casual employees.

[6] The Respondent took a jurisdictional objection to the claim based on the Applicant’s casual status. In any event, it says that he failed to follow a clear and reasonable direction. Finally, it offered to re-employ him as a casual or make a settlement payment of $500.

Commission Proceedings

[7] The matter was conciliated on 8 April 2014, but did not settle.

[8] The matter was listed for hearing by Deputy President Booth, to deal with the Respondent’s jurisdictional objection on 13 June 2014.

[9] For the purpose of this hearing, the Applicant lodged an outline of submission and statement dated 5 May 2014 which included the following:

● He is 21 years old; and

● He is a full-time student;

● He asserted that, on the basis of his last three weekly wage payments he earned on average $710 per week;

● His hourly rate varied between $21 and $30 over four shifts totalling 25 - 30 hours per week;

● He was given no opportunity to respond to the instruction to dismiss him from the owner;

● The dismissal was disproportionate to the alleged offence. Other employees who were given the “clean up” directive were not dismissed;

● The Applicant received $130 net for a single shift at another local bottle-shop from 8 March 2014;

● It took the Applicant eight weeks to find employment at a comparable level. He seeks compensation for the income lost during that period.

[10] The Respondent lodged an outline of submissions relying on its employment of the Applicant as a casual. It submitted that it was not obliged to give him written notice or a reason for his dismissal.

[11] The Applicant lodged a response dated 10 June 2014. This focuses on the dismissal being based on an alleged failure to carry out a direction, which was not specified in any event, rather than a lack of work for casuals.

[12] Deputy President Booth delivered a decision dismissing the Respondent’s jurisdictional objection on 28 July 2014 [2014] FWC 5053.

[13] I conducted a programming hearing by teleconference on 5 November 2014.

[14] The matter was heard on 13 November 2014 and proceeded by way of determinative conference.

[15] The Applicant was self-represented. The Respondent was represented by Mr A. Tyack, the licensee, who had been authorised to appear by the owner.

[16] The Applicant filed a further statement and submissions dated 9 November 2014. The Applicant also relied on the material that had been tendered before Deputy President Booth. The Respondent filed nothing more.

Protection from Unfair Dismissal

[17] An order for reinstatement or compensation may only be issued where I am satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

[18] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(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.

[19] There was no dispute that the Applicant was covered by a modern award, the Hospitality Industry (General) Award 2010 (MA000009) in compliance with s.382(b). However, because of the Applicant’s casual status the Respondent submitted that the Applicant was not a person protected from unfair dismissal in accordance with s.382(a).

[20] Section 396 provides that certain matters must be determined by the Commission before proceeding to deal with the merits of a matter. It provides:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 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.”

[21] The “minimum employment period” is defined in s.383 of the Act as follows:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[22] In order for a casual employee to satisfy the minimum period of employment they must come within the provisions of s.384 which relevantly provide:

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

Was the dismissal unfair?

[23] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“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.

Was the Applicant dismissed?

[24] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act. Section 386 of the Act provides that:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[25] There was no real submission that the applicant was not dismissed. There was a suggestion that lack of work for casuals was the reason for the termination. However, this really amounted to an assertion that the Respondent could dismiss a casual employee at its discretion. I am satisfied that the Applicant was dismissed. It is also clear that s.385(c) and (d) have no application.

The Applicant’s Casual Status

[26] Deputy President Booth decided that the Applicant was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis within s.384.

[27] Deputy President Booth had been provided by the Respondent with payslips for the Applicant for the period 28 August 2012 to 10 February 2014. The summary of the Applicant’s hours and earnings are set out in paragraph [17] of her decision. He worked consistently for a period of 76 weeks on an average 25 to 30 hours per week. He worked on Wednesday, Saturday and Sunday nights and usually an additional week night.

[28] Deputy President Booth further concluded that his minimum employment period was well in excess of the minimum defined by s.383.

[29] The Applicant was therefore protected from unfair dismissal pursuant to s.382.

Harsh, Unjust or Unreasonable

[30] Having dealt with each of s.385(a), (c) and (d) of the Act, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.

Approach of the Commission

[31] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[32] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:

“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”

[33] In submitting that the dismissal was harsh, unjust and unreasonable, the Applicant relied on the material tendered prior to the jurisdiction hearing.

[34] The Applicant’s supplementary statement and submissions of 9 November give details of the shortfall in income he has incurred since his dismissal by the Respondent. The work that he got in early March 2014 lasted only eight weeks. He continues in the other position but nets about $391 per week for two shifts. He estimates his net earnings since the dismissal until 7 November 2014 at $11,036.82

[35] In this submission, the Applicant estimated his weekly wage at $635 per week. He estimates his earnings would have been $21,590 if he had not been dismissed as against $11,036.82.

[36] The Respondent did not really provide an argument at the hearing as to why the dismissal was not harsh unjust or unreasonable. It is apparent from Mr Tyack’s submission at Transcript PN220 that the owner had thought that because the Applicant was a casual he could be dismissed without any recourse to an unfair dismissal remedy. Once it became clear, at the conciliation and as a result of Deputy President Booth’s decision, the debate was about the level of compensation.

Valid Reason - s.387(a)

[37] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench said ‘In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable’.

[38] Northrop J in Selvachandranv Peteron Plastics Pty Ltd (1995) 62 IR 371 said:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly ...”

[39] In Parmalat Food Products Pty Ltd v Wililo, [2011] FWAFB 1166, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

[40] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered under s.387:

“[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v Commonwealth – that s.170DE(2) by its operation could render invalid a reason that would otherwise have been a valid reason. The fact that some dismissals are “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” means that the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class of dismissals where there is no “valid reason” for the dismissal.

[21] Section 387 specifies a range of matters that must be considered in each case. Section 387(h) requires consideration of “any other matters that FWA considers relevant”. In any given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or unreasonable” and thus are “relevant matters” that must be considered pursuant to s.387(h).

[22] Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter greatly. That will tend to be so when the particular misconduct, shorn of the personal circumstances of the employee and the broader context beyond the particular acts or omissions that are said to constitute the misconduct, is clearly a matter that a reasonable employer is entitled to take seriously. This is such a case.

...

[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1). ”

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.
. . .

[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”

[41] I respectfully adopt this approach.

[42] Ultimately, there was not really a contest as to the facts, as Mr Tyack conceded. The Applicant was given an instruction to clean up on Saturday 15 February. He was not able to fully carry it out for reasons beyond his control and which were, I find, reasonable. The instruction was repeated on the Sunday. I find that the Applicant complied later that day, as soon as he reasonably could, given the staffing restrictions that applied. No inquiry as to the full circumstances was carried out by the owner. The direction could not, therefore, be considered reasonable. In any event the Applicant complied as soon as it was reasonable for him to do so. I find that there was no valid reason for the dismissal.

[43] Dismissal was not an appropriate sanction even if the owner was correct in deciding that there was some delay in carrying out his instruction.

Notification of a Valid Reason - s.387(b)

[44] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”   Ibid at 151.

[45] I find that the Applicant was not notified in accordance with s.387(b). He was not told the reason for the meeting on Monday 17 February. The allegation was never fully explained to him. The owner had made up his mind and the licensee and manager just passed it on.

Opportunity to Respond s.387(c)

[46] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.

[47] It follows that the Applicant had no real opportunity to respond.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[48] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[49] There was no breach of this section but the Applicant had no opportunity to seek assistance given the nature of the 17 February meeting.

Warnings regarding unsatisfactory performance - s.387(e)

[50] This was not a performance issue so this provision does not apply.

Impact of the size of the Respondent on procedures followed - s.387(f)

[51] Clearly the size of the Respondent impacted on the procedures followed, but it in no way excuses the disregard shown for the right of casual employees.

Absence of dedicated human resources management specialist/expertise on procedures

followed - s.387(g)

[52] No human resources specialists were involved.

Any other matter that the FWC considers relevant

[53] Section 387(h) allows the Commission to consider any other matters it considers relevant. These must be considered in the context of the object of Part 3 - 2 of the Act contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and the employee concerned”.

[54] I do not find that these are matters that should be taken into account.

[55] For the above reasons, in addition to the finding that there was no valid reason for dismissal, I find that the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, I find that the dismissal was unfair within the terms of s.385.

Compensation

[56] Having found that the dismissal was unfair, I now turn to the appropriate remedy.

[57] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

“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.”

[58] The Applicant does not seek reinstatement and it would not be appropriate given the casual nature of his employment..

[59] Section 390(3)(b) provides that I may only issue an order for compensation to the Applicant if it is appropriate in all the circumstances.

[60] I have found that the applicant has been unfairly dismissed and that reinstatement is not appropriate in all the circumstances. I am satisfied that an order for compensation should be made.

[61] Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered 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 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.

(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.”

[62] The method for calculating compensation under s.392 of the Act was dealt with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge,[2013] FWCFB 431 (Bowden). In that decision the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket, (1998) 88 IR 21 and Ellawala v Australian Postal Corporation, Print S5109 (Ellawala). I have adopted the methodology utilised in Bowden in determining the amount of a payment of compensation.

[63] I will now consider each of the criteria in s.392 of the Act.

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

[64] Much of the time during the hearing was taken up with me trying to determine exactly what the Applicant earned both before and after the dismissal. As I have already noted in [26] above, the Respondent provided detailed payment records to Deputy President Booth. These are set out in a table at [17] of her decision. The Applicant disputed the accuracy of the total table, suggesting the figures were “net” rather than gross. The hours worked, and therefore the earnings, varied from week to week so it is necessary to estimate an average earnings per week. Ultimately, Mr Tyack agreed that $635 per week would be a reasonable estimated gross average (see Transcript PN357 - 359). The Applicant did not object. I have decided to use this figure.

[65] I now 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.

[66] The Applicant says he would have continued to work there until the end of 2015. However, given the casual nature of his employment I find that three months would have been a reasonable estimate. The remuneration he would have received is therefore $7,620.

Remuneration Earned: - s.392(e)

[67] The Applicant stated that he obtained some employment after eight weeks. It is apparent that his earnings were much less, however. In his supplementary submission of 9 November, the Applicant estimated the shortfall up to that date as about $10,000. I am satisfied that some small discount is appropriate. The compensation is reduced to $7,000.

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

[68] This matter is not relevant.

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

[69] There are no other matters that I consider appropriate to consider.

Viability: - s.392(2)(a)

[70] This matter is not relevant.

Length of Service: - s.392(2)(b)

[71] This was not a factor in this case.

Mitigating efforts: - s.392(2)(b)

[72] 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, (Ellawala).

[73] I find that the Applicant has made efforts to mitigate his loss suffered as a result of the dismissal.

Misconduct: s.392(3)

[74] No adjustment to the compensation is appropriate on this ground.

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

[77] The high income threshold component is $66,500.

[78] The amount of compensation I will order does not exceed the compensation cap.

[79] I will order the Respondent to pay to the Applicant an amount of $7,000.

Conclusion

[80] I am satisfied that the Applicant was protected from unfair dismissal, and that the dismissal was unfair and a remedy of compensation is appropriate. In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.

[81] An order (PR560888) will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

J. McKinnon self represented applicant.

A. Tyack with N. Balagiannis for the Respondent.

Hearing details:

2014

Sydney:

November 5 (teleconference), 13.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR560841>