Jason Nicolaou v Architectural Project Specialists

[2017] FWC 6088

[2017] FWC 6088

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Nicolaou
v
Architectural Project Specialists
(U2017/6156)

DEPUTY PRESIDENT BOOTH SYDNEY, 17 NOVEMBER 2017

Application for an unfair dismissal remedy

[1] Further to my earlier decision in this matter 1 in which I found that the Applicant, Mr Nicolaou, was unfairly dismissed by the Respondent, Architectural Project Specialists (APS) 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).

[2] Material was received from Mr Nicolaou on 16 and 20 October 2017, material was received from APS on 27 October 2017 and Mr Nicolaou filed a response on 1 November 2017.

[3] Unfortunately, the material filed by both parties does not assist me greatly in addressing s. 392 of the Act. Mr Nicolaou’s submissions outline the impact of the loss of his employment on various aspects of his life. He seeks compensation for ‘pain and suffering’ as well as ‘redundancy pay’. APS has submitted that Mr Nicolaou should be awarded a ‘settlement’ based on what they calculate to be his ‘redundancy entitlements’.

[4] I will calculate the amount of compensation to be paid to Mr Nicolaou 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

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

[5] As noted in my earlier decision in this matter, APS had nine employees at the time of Mr Nicolaou’s dismissal. However, no evidence has been filed by APS to suggest that an order for compensation will affect the viability of the business. In the absence of evidence as to the financial situation of the business and the likely effect that an order in this regard I am unable to find that an order for compensation would affect the viability of APS. 3

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

[6] Mr Nicolaou was employed by APS approximately three and a half years. I have calculated an amount of compensation to be paid to Mr Nicolaou based on the criteria contained in the Act and the contemporary application of the Sprigg formula. I consider that Mr Nicolaou’s length of service should not affect the amount of compensation to be ordered.

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

[7] Payroll records indicate that Mr Nicolaou had variable earnings from week to week. However Mr Nicolaou’s year to date earnings as at the time of his dismissal were $47,997.09 gross. Given this covers a period of approximately 46 weeks, Mr Nicolaou’s average gross weekly earnings were approximately $1,043.40.

[8] I find that Mr Nicolaou would have been unlikely to continue in his employment with APS for any considerable amount of time. In reaching this conclusion I have had regard to the very poor relationship between the parties that was abundantly evident at various listings before me in this matter. Although I have not found that Mr Nicolaou had a record of poor attendance, I accept that the relationship between the parties had essentially broken down by the time Mr Nicolaou was dismissed. Therefore, I consider that he would have remained employed by APS for a further two months only.

[9] The amount Mr Nicolaou would have received is therefore a total of $9,035.85 plus superannuation.

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

[10] The efforts that Mr Nicolaou took to mitigate his loss are difficult to discern. He has not obtained another formal position of employment since his dismissal. However he gave evidence that he has been doing some work ‘helping a mate put fences in’.

[11] Mr Nicolaou submitted that he has been unable to take two job offers since his dismissal, as his drivers’ licence was suspended for a significant period as a result of an unpaid fine that was incurred driving an APS vehicle that was unregistered. While Mr Nicolaou did not give evidence about being unable to accept job offers at the hearing in this matter, it was clear on the evidence that APS had refused to pay the outstanding fine. It seems that fine remained unpaid from shortly after the proceedings in the Commission commenced in June 2017, to after the hearing of this matter on 11 September 2017.

[12] I accept that APS’ refusal to pay the fine has hampered Mr Nicolaou’s attempts to find employment and that Mr Nicolaou has taken reasonable steps to mitigate the loss he suffered as a result of his dismissal.

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

[13] Mr Nicolaou gave evidence that he had earned ‘$1300.00 or $1400.00’ from the date of his dismissal until the time of the hearing on 11 September 2017.

[14] I will deduct $1350.00 from the amount he would have earned had he remained in employment with APS.

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

[15] Mr Nicolaou is not in permanent employment. I do not consider that this is relevant.

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

[16] 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)

[17] I have not found that misconduct on the part of Mr Nicolaou contributed to his dismissal. Although APS made submissions about that Mr Nicolaou had a long history of regular unplanned absences about which he had been repeatedly counselled, however no evidence was furnished to support these allegations. As I am not satisfied that Mr Nicolaou was warned about non-attendance or indeed had a record of non-attendance, I do not make any deduction of compensation on this basis.

Shock, Distress: s.392(4)

[18] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress. Although Mr Nicolaou submitted an award of compensation should be made on this basis, s. 392(4) of the Act expressly prohibits an award of compensation containing such a component.

Compensation cap: s.392(5)

[19] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by Mr Nicolaou, or to which Mr Nicolaou 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.

[20] The amount Mr Nicolaou would have earned, or to which Mr Nicolaou was entitled, for the 26 week period immediately prior to the dismissal was $27,128.40 exclusive of superannuation contributions. I note this calculation is based on average earnings reflected in payroll records.

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

Compensation to be ordered

[22] In calculating the compensation I have deducted the remuneration Mr Nicolaou received to the date of hearing, being $1,350.00, from the amount that would have been received had he remained employed for two months. This leaves a total of $7,685.85.

[23] I order that APS pay Mr Nicolaou $7,685.85 before tax, plus 9.5% superannuation ($730.16) in compensation. The amount of superannuation is to be paid to the superannuation fund that Mr Nicolaou nominated during his employment. An order to that effect will issue with this decision

DEPUTY PRESIDENT

 1   [2017] FWC 5224.

 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   D.A. Moore v Highpace Pty Ltd Print Q0871 (AIRCFB, Boulton J, Watson SDP, Whelan C, 18 May 1998).

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