James Taylor v Cut Above the Rest Tree Surgery Pty Ltd T/A Tree Mason

[2016] FWC 8221

[2016] FWC 8221

FAIR WORK COMMISSION

FURTHER DECISION IN REGARD

TO REMEDY

Fair Work Act 2009
s.394—Unfair dismissal

James Taylor
v
Cut Above the Rest Tree Surgery Pty Ltd T/A Tree Mason
(U2015/16442)

COMMISSIONER CRIBB MELBOURNE, 16 NOVEMBER 2016

Application for relief from unfair dismissal - compensation in lieu of reinstatement.

[1] This decision concerns final determination of an amount of compensation, in lieu of reinstatement, to be ordered by the Fair Work Commission, pursuant to section 392 of the Fair Work Act 2009 (the Act). It follows the decision 1 issued on 7 November 2016 in which the Commission found that Mr Taylor was unfairly dismissed. In that decision, the Commission was unable to determine an amount of compensation as there was insufficient material before the Commission at that time.2

[2] Accordingly, Mr Taylor was requested to provide details of any remuneration earned from 16 November 2015 to 17 February 2016 together with supporting documentation. 3 On 10 November 2016, Mr Taylor sent an email to the Commission with the requested information and attaching a letter from his accountant.

[3] As the Commission is now in receipt of all of the necessary information, final determination of an amount of compensation can now be made.

Section 392(2)(e) and (f) - remuneration earned and income reasonably likely to be earned

[4] Mr Taylor, in his email, stated that, between 16 November 2015 and 17 February 2016, he did not receive any remuneration. This was because he was studying full-time. It was also stated that, although he continued to run a partnership business, the business was not in a financial position to allow him to take any personal earnings for his work. Mr Taylor attached a letter from his accountant, from AD Partners, which confirmed that Mr Taylor did not receive any remuneration from the partnership for the period concerned. 4

[5] Therefore, I find that Mr Taylor earned no remuneration during the period of anticipated employment.

Findings made in the first decision

[6] In the first decision, it was found that, if Mr Taylor had not been dismissed, he would have continued to work for a further three months (section 392(2)(c). 5 The provisional amount for the three month period of anticipated employment was calculated to be $15,795.00 (gross).6

[7] Further, pursuant to section 392(3), the Commission proposed to reduce the provisional amount by 30% as one of the reasons for Mr Taylor’s dismissal was inappropriate and unacceptable behaviour (misconduct). 7 This results in a provisional amount of $11,056.50 (gross).

[8] It was not proposed to make a deduction for contingencies as the anticipated period of employment has well passed. 8 This results in a provisional amount of $11,056.50 (gross).

Section 392(5) - compensation cap

[9] Since the provisional amount of compensation ($11,056.50) is less than the amounts provided for in section 392(5) of the Act, I make no further reduction for that reason.

Conclusion

[10] Therefore, it is considered appropriate to make an order that Cut Above the Rest Tree Surgery Pty Ltd t/a Tree Mason pay $11,056.50 (gross), less taxation as required by law, in compensation to Mr Taylor in lieu of reinstatement, within 21 days of the date of this decision.

[11] An order 9 to this effect will be issued separately.

 1   [2016] FWC 7828

 2   Ibid at [129] - [130]

 3   Ibid at [131]

 4   Email from Mr Taylor, dated 10 November 2016, with attached letter from AD Partners

 5   [2016] FWC 7828 at [125]

 6   Ibid at [126]

 7   Ibid at [134]

 8   Ibid at [135]

 9   PR587584

Printed by authority of the Commonwealth Government Printer

<Price code A, PR587581>