Jankowski v Kryolan Australia Pty Ltd

[2015] FWC 2953

[2015] FWC 2953

FAIR WORK COMMISSION

FURTHER DECISION IN REGARD

TO REMEDY

Fair Work Act 2009
s.394—Unfair dismissal

Miss Helena Jankowski
v
Kryolan Australia Pty Ltd
(U2014/10535)

COMMISSIONER CRIBB MELBOURNE, 6 MAY 2015

Application for relief from unfair dismissal - further decision in regard to remedy - compensation in lieu of reinstatement.

[1] This decision concerns determination of an amount of compensation, in lieu of reinstatement, to be ordered by the Fair Work Commission (Commission), pursuant to section 392 of the Fair Work Act 2009 (the Act). It follows the decision 1 on 23 April 2015 in which the Commission found that Ms Jankowski had been unfairly dismissed. In that decision, the Commission was unable to finally determine an amount of compensation as there was insufficient material before the commission at that time.2

[2] Accordingly, Ms Jankowski was directed to provide the Commission and the Respondent with the amount earned since her dismissal to the date of the decision (23 April 2015). 3 On 28 April 2015, the Commission was provided with documentation showing Ms Jankowski’s earnings from 30 November 2014 to 23 April 2015.4 The Commission subsequently requested Ms Jankowski’s earnings for the period from 24 June 2014 to 24 September 2014.

[3] I will now deal with determination of an amount of compensation.

1. Remuneration that would have been received (section 392(2)(c))

[4] I have previously decided that, if Ms Jankowski had not been dismissed, she would have continued to work for at least another three months. 5 Over that three month period, the remuneration that Ms Jankowski would have received or would have been likely to receive from the company is $11, 250.33 (gross).6

2. Remuneration earned (section 392(2)(e) and income reasonably likely to be earned (section 392(2)(f))

[5] These sections of the Act deal with the amount of any remuneration earned by Ms Jankowski from employment in other work. This is, firstly, during the period between the dismissal and the making of an order for compensation. Secondly, it is any income reasonably likely to be earned during the period between the making of an order for compensation and the actual compensation. However, it is only monies earned during the period from termination until the end of the anticipated period of employment. 7 In this matter, the period of anticipated employment was a further 3 months from the date of dismissal - until 24 September 2014. Therefore, it is only the earnings for that period which are to be taken into account.

[6] It was submitted on behalf of Ms Jankowski that her earnings for the anticipated period of employment (24 June 2014 - 24 September 2014) were $4,399.75. 8 This results in a provisional amount of $6,850.58.

3. Other matters (section 392(2)(g)

[7] As set out in the previous decision, as the anticipated period of employment has passed, it is not necessary to make a deduction for contingencies. 9

[8] The impact of taxation has been considered but a gross amount will be settled on.

[9] There are no other matters that are considered relevant in determining an amount of compensation instead of reinstatement, apart from those in section 392(2)(a),(b) and (d), 392(3) and 392(5). These will now be dealt with.

4. Section 392(2)(a) - viability

[10] As found 10 in the previous decision, there is no evidentiary basis before me on which to conclude that an award of compensation would affect the viability of the employer’s enterprise. It is therefore not a matter which, in this case, warrants adjustment to the amount.

5. Section 392(2)(b) - length of service

[11] Ms Jankowski’s length of service with the company was about two years and four months.

6. Section 392(2)(d) - mitigation efforts

[12] As stated in the previous decision, I am satisfied that Ms Jankowski has made reasonable efforts to mitigate her loss. 11

7. Section 392 (3) - misconduct

[13] As indicated in the previous decision, on the basis of the nature of the misconduct, the reduction will be 10%.

[14] This results in a provisional amount of $6,165.52.

8. Section 392(5) - compensation cap

[15] Since the amount of compensation of $6,165.52 is less than the compensation cap in section 392(5) of the Act ($22,500.66), I make no further reduction for that reason.

9. Section 393 - instalments

[16] As there were no submissions that any amount of compensation should be subject to payment by instalments, no finding to this effect needs to be made.

Conclusion

[17] Therefore, it is considered appropriate to make an order that Kryolan Australia Pty Ltd pay $6,165.52 (gross), less taxation as required by law, as compensation to Ms Jankowski in lieu of reinstatement, within 21 days of the date of this decision. An order 12 to this effect will be issued separately.

 1   [2015] FWC 2209

 2   Ibid at [164]

 3   Ibid at [165]

 4   E-mail from Mr Dircks dated 28 April 2015

 5   [2015] FWC 2209 at [158]

 6   Ibid at [160]

 7   [2013] FWCFB 431 at [34]

 8   Letter from Mr Dircks, on behalf of the Applicant, dated 4 May 2015

 9   [2015] FWC 2209 at [172]

 10   Ibid at [150]

 11   Ibid at [162]

 12   PR566604

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