Jason Nuttall v The Trustee for Bm Supplies Unit Trust
[2024] FWC 953
•12 APRIL 2024
| [2024] FWC 953 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Nuttall
v
The Trustee for Bm Supplies Unit Trust
(U2023/7212)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 12 APRIL 2024 |
Application for an unfair dismissal remedy
On 5 August 2023, Mr Jason Nuttall (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment BM Supplies Unit Trust (Respondent). The Applicant seeks financial compensation.[1]
The Applicant contends that on 15 July 2023 he was unfairly dismissed from his employment.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(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.
When has a person been unfairly dismissed?
Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.
Background
I traversed the full history of the matter in the Jurisdictional Decision.[2] Briefly, The Applicant was employed by the Respondent on 1 November 2020 as a full-time Truck Driver.
On 24 June 2023 the Respondent’s business was sold to Dairy Direct distribution Pty Limited. It is uncontested that the Respondent phoned the Applicant on Saturday 15 July 2023 and advised him that he would not be employed by the new owners and that his entitlements would be paid out and his services would no longer be required.
The Respondent initially objected to the application on the ground that the Applicant was not dismissed. Alternatively, it submitted that it was not the Employer at the time of dismissal. On 5 February 2024, following a hearing that was held on 23 January 2024, I issued a decision that dismissed the Respondent’s jurisdictional objections (Jurisdictional Decision).[3]
The matter proceeded to determination of the merits.
The Determinative conference
There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing.
After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter (s.399 of the Act).
Permission to appear
The Applicant sought to be represented before the Commission by a lawyer.
Relevantly, section 596(1) of the Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.
Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:
(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the Act.[4] The decision to grant permission is a two-step process. First it must be determined if one of the requirements in s.596(2) have been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.[5]
Submissions
The Applicant’s representatives, inter alia, submitted that allowing the Applicant to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. The Respondent objected to the Applicant being represented on the basis that he no longer had legal representation and that the actions of the Applicant’s Representative to date had not resulted in the matter being dealt with efficiently. The Respondent further submitted that the Applicant’s Representative had changed direction and the name of the Applicant.
I considered the submissions made by both parties and I formed the view that having an experienced advocate would assist the Commission to deal with the matter more efficiently and that this outweighed the objections. In weighing the objections, I also had regard for the Respondent’s submissions that the Applicant’s representative to date, had not enabled the matter to be dealt with more efficiently. I disagree with this submission. The Applicant’s representative had helped to resolve key issues that were stymied by the Respondent’s conduct in raising jurisdictional objections that were addressed in the Jurisdictional Decision.[6] I therefore decided to exercise my discretion to grant permission for the Applicant to be represented at the hearing on 11 March 2024 by Ms Denise Hawthorne.
Witnesses
The Applicant gave evidence on his own behalf and the Respondent gave evidence on his own behalf.
Submissions
The Applicant filed submissions in the Commission on 7 February 2024 and on 27 February 2024. The Respondent filed submissions in the Commission on 19 February 2024.
Initial matters
Under section 396 of the Act, the Commission is obliged to decide the following matters 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.
Was the application made within the period required?
Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
In the Jurisdictional Decision,[7] I found that the Applicant was dismissed from his employment on 15 July 2023 and made the application on 5 August 2023. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
I have set out above when a person is protected from unfair dismissal.
Minimum employment period
It was not in dispute, and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.
It was not in dispute, and I find that the Applicant was an employee, who commenced their employment with the Respondent on 1 November 2020 and was dismissed on 15 July 2023, a period in excess of 6 months.
It was not in dispute, and I find that the Applicant was an employee.
I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Modern award coverage
It was not in dispute, and I find that, at the time of dismissal, the Applicant was covered by an award, being the Road Transport and Distribution Award.
I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal a case of genuine redundancy?
Under s.389 of the Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
Whilst it appears that the Respondent no longer required the job to be performed by anyone following the sales of the business, it was not in dispute that the Respondent did not consult with the Applicant about a redundancy.
I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[8]
I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[9] and should not be “capricious, fanciful, spiteful or prejudiced.”[10] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[11]
Submissions
The Applicant submitted that there was no valid reason for the dismissal related to the Applicant’s capacity or conduct because there was no evidence to suggest that the termination had any relationship to the Applicant’s conduct or capacity.
The Respondent submitted that there was a valid reason for the dismissal related to the Applicant’s capacity or conduct because he submitted there were numerous complaints about the Applicant’s performance.[12]
Evidence
The Respondent filed copies of its welcome and induction training material which covered topics such as workplace behaviour, food handling, safety and other workplace practices which appear to have been signed off by the Applicant on 30 October 2020.[13] The Respondent also filed copies of annual refresher training completed by the Applicant in respect of that same material on 8 July 2021[14] and again on 25 August 2022.[15]
In his statement, Mr Steve Carew of the Respondent makes a number of assertions that the Applicant provided poor customer service, was witnessed assaulting other persons, engaged in sexual harassment and was unable to perform his job.[16] Mr Carew provided a list of customers he asserted to have lodged complaints.[17]
The Respondent also submitted the following emails in support of those assertions:
(a) An email dated 9 June 2023, from a Territory Manager (TM) at Lactalis (from who the Respondent was contracted to deliver milk for). The TM complains that one of its customers requested their milk deliveries earlier. When the Applicant was away, the milk arrived at around 8.30am. The customer asked the Applicant if he could please deliver at the same time of the day as the Applicant delivered around 3-3 ½ hours later each day. The customer said that the Applicant refused and had told the customer that he (the Applicant) will make life harder for the customer if the customer complains. The TM requested the Respondent’s assistance to resolve this.[18]
(b) An email dated 22 November 2022, from the Tuckshop at a local State High School, signed off by the Tuckshop Manager (Tuck Mgr). The Tuck Mgr complains that when the Applicant was away, they received their milk delivery around 9am each morning which was in time for their first service at 11:20am. When the Applicant returned to the run, the Tuck Mgr noted that the deliveries again were delayed and that sometimes this was caused by how long the Applicant sat in his truck or as to the weather at the time. She explained that on one occasion, children were queueing up for their first break and they were still waiting for the milk. One of the tuckshop staff went out to the truck and asked the Applicant if they could just take the milk for the children. The Tuck Mgr noted that after that incident, the milk turned up even later with the driver (the Applicant) sitting in his truck for lengthy periods and on that basis the Tuck Mgr requested the previous driver back.[19]
(c) An email dated 9 July 2021 from one of the Respondent’s employees responsible for ordering (Order Staff) to the Respondent’s logistics team (Delivery Team), complaining that she had received a phone call from a state school not receiving their milk until lunchtime each day despite the fact they opened at 5am and needed the milk before 8am. The Order Staff asked the Delivery Team to schedule earlier deliveries. There was no specific mention of the Applicant’s name.[20]
(d) An email dated 28 July 2022 from the Lactalis TM to another employee at Lactalis advising that two customers had raised concerns about the Applicant delivering their milk at 11am instead of 7am. The TM noted that the Respondent had apologised to the customer and advised the TM that he would talk again to the driver (the Applicant) and if he (the Applicant) doesn’t comply this time, the Respondent would give the Applicant a written warning. The TM expressed concern they would lose these customers and also that “there have been so many customers complaining about their delivery time blowing out.”[21]
(e) An email dated 14 April 2023 from the State Sales Manager of Lactalis (SSS) to the Respondent in which she raises a series of complaints from three customers who were in close proximity. The concerns centred on the inconsistent delivery of their milk. The complaints included that the milk would be delivered anywhere in a 3-hour window, was consistently late, that the Applicant would not acknowledge the customer or say hello and that consequently, they often wouldn’t know the milk had been delivered. The SSS also made note that when the Applicant was on holidays, customers received their milk 2-3 times earlier.[22]
(f) An email dated 10 November 2020 from a Store Manager of a local IGA store complaining of repeated late deliveries that were required before their store opened at 6am. The email was forwarded to someone (unknown) and says that this was on the Applicant’s run and noting that the Applicant had already been spoken to about this issue and noted that the “Jason can be stubborn and will not change his timings.”[23]
(g) An email dated 11 November 2020 from one of the Respondent’s logistics team to another employee of the Respondent, with the subject line titled as a local IGA store, suggesting they could change an unnamed driver’s run so that they would arrive ‘no later than 6:30’, but that they kept getting told it doesn’t work by Jason”, although the logistics team’s employee noted it ‘works fine for me and all relief drivers that have done it.’ The other employee then sought to confirm whether she could advise the customer that this would take place, to which the logistics team’s employee replied he would need to ‘work this out’ with the Applicant, that the customer could be advised the Respondent was making changes and appreciated the offer of the customer being onsite by 5:30am.[24]
(h) An email dated 22 May 2023 from the team leader of Lactalis’s ‘Customer Resolve – Delivery’ team to the Respondent’s Accounts team, summarising a complaint from an individual from the Tuckshop of a local private school about an unnamed driver who made the delivery to the school that day. The complaint noted that the driver had ‘disgusting behaviour’ and kicked boxes of another supplier in his way. The complainant noted it was a ‘different’ driver that morning, who seemed aggressive and did not treat the complainant well when speaking to him. The Lactalis team leader noted there was no CCTV inside the facility and suggested checking who the particular driver had been and whether he was unwell, as well as obtaining a witness statement from staff who were there at the time. A staff member of the Respondent’s Accounts team replied to that email that day. Without naming the driver, the staff member apologized for the Driver, stated that they had spoken to the driver in relation to the complaint, and requesting that the customer ensure the path was kept clear for future deliveries.[25]
(i) An email dated 25 February 2022 from a team member of Lactalis’s ‘Customer Resolve – Delivery’ team to the Respondent’s Order Staff, summarising a complaint from a local Ampol petrol station who advised that the customer had rejected that morning’s delivery as the whole order had been ‘above Temp’. As there was no delivery scheduled until the following Tuesday, the team member enquired whether the same order could be delivered tomorrow. There were a number of emails back and forth between the Accounts and Delivery teams which identified the complaints as relating to the Applicant and sought to resolve the customers immediate need for a new delivery.[26]
(j) An email dated 4 June 2021 from one employee of the Respondent to another, attaching a note left for the Applicant.
a. The attached document contained two messages, dated 2 June, from the same staff member addressed to the Applicant.
b. The first message noted an individual at a local IGA store had asked the Applicant to ring the buzzer located on the dock on his next delivery, and that she would show him the way milk was to be delivered through the week.
c. The second message in relation to a different customer noted that they had ‘had some issues with proof of delivery’, reminding the Applicant that the customer’s full name and signature was required, or else it would be taken to mean no delivery. The message emphasized no exceptions were to be made for the relevant customer due to no payment of an invoice. [27]
The email stated that the Applicant had informed the Respondent he would not be ‘delivering this way’, as he would not be waiting half an hour to deliver. The email chain went on to express confusion as to why other drivers were able to accommodate the customer’s request when the Applicant had refused to. [28] Lastly, the employee of the Respondent who wrote the email expressed alarm that the Applicant had gotten ‘extremely agitated in the office’ with another employee that she witnessed when these phone messages were raised with him.[29]
Under cross-examination in the hearing, Mr Carew alleged that he had repeatedly raised these issues with the Applicant however the only record of any of this being raised with the Applicant was the email of 4 June 2021 in which another employee says she raised those issues with the Applicant.[30]
Findings
The emails/phone messages date back to 10 November 2020. I note that some of these did not name the Applicant in them or were vague, lacked detail and unsupported by a witness statement with any probative value.
There is a paucity of evidence to support the assertions made by the Respondent. The emails provided by the Respondent largely amount to hearsay and there is no probative evidence of any of them being raised with the Applicant, other than the assertions of the Respondent. There are a number of examples provided by the Respondent, which would indicate that there may well have been issues with respect to the Applicant’s conduct towards customers and staff of the Respondent. Unfortunately, it appears these were not managed well by the Respondent at the time they occurred, and it is a lesson for any manager or business owner that complaints of this nature need to be handled in a timely and transparent manner. In this matter, the evidence of the Respondent is that the new owner chose not to employ the Applicant upon its purchase of the business. It was this position upon which the Respondent relied in relation to its previous jurisdictional objections which were eventually dismissed. These are set out in detail in the Jurisdictional Decision.[31] The Respondent, it seems, has then realised it’s problem and then sought to rely on these concerns to justify the dismissal. Whilst I accept that it was probable the Respondent had issues with respect to the Applicant’s conduct and work performance during the years he was employed by the Respondent, I do not believe they provide a valid reason at the time of the dismissal. Indeed, it is uncontested that these issues were not raised with the Applicant at the time of dismissal at all.
Having regard to the matters I have referred to above, I find that there was no valid reason for the Applicant’s termination, and this points strongly to the dismissal being unfair.
Was the Applicant notified of the valid reason?
It is uncontested that the Applicant was notified by the Respondent of the termination of his employment when he phoned the Applicant on 15 July 2023, to advise him that the new owner chose not to offer the Applicant a job. I also accept that the Applicant was not given any other explanation at the time.
Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[32]
As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[33] I accept that the Respondent did notify the Applicant of the termination and at best, I consider this factor to be neutral in my consideration.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[34]
Further, the Applicant was given no opportunity to have discussions about his dismissal. I note that the Respondent put a number of issues in evidence before the Commission in respect of the Applicant’s conduct however given the nature of that evidence (set out at paragraph [46]), I give them little weight.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
It is uncontested that the Applicant did not make any request for a support person as there were no discussions relating to the dismissal prior to the phone call of 15 July 2023 when the Applicant was terminated.
Was the Applicant warned about unsatisfactory performance before the dismissal?
Whilst the Respondent alleged that there was unsatisfactory performance and that the Applicant was warned on numerous occasions,[35] I note that a mere exhortation for an employee to improve their performance would not be a sufficient warning. A warning must:
· identify the relevant aspect of the employee’s performance which is of concern to the employer; and
· make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.[36]
Submissions
The Applicant submitted that he had not been warned about any unsatisfactory performance prior to dismissal on the basis that no issue had ever been raised with him.[37]
The Respondent submitted that the Applicant had been warned about the unsatisfactory performance prior to dismissal on the basis that there were numerous concerns raised on ‘numerous occasions”[38].
Evidence
The Respondent relies on the evidence I have set out at paragraphs [41]-[44] of this decision.
Findings
I find that there is no evidence before me that satisfies me that the Applicant was warned about unsatisfactory performance before his dismissal. I set out my findings earlier in respect of the evidence before the Commission at paragraphs [45]-[46].
In all the circumstances, I find that the Respondent did not warn the Applicant of their unsatisfactory performance before dismissal and that this weighs in favour of a finding that the dismissal was unfair.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal and to what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
The factors in s.387(f) – (g) would appear to be largely neutral, and possibly somewhat in favour of the Respondent. The Respondent was a relatively small organisation and the evidence before me does not disclose any dedicated or competent human resources management.
In all the circumstances, I find that the lack of human resource expertise in the Respondent’s enterprise had an impact on the procedures followed in effecting the dismissal and it appears that the Respondent was unaware of his obligations to the Applicant.
The absence of dedicated human resource management specialists however does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”[39]
I consider this to be a neutral factor in my deliberations.
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
Submissions
The Applicant submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable:
Failure to give proper notice of the impending termination;
Failure to properly consult with the Applicant;
Terminating the Applicant by means of a telephone message;
Failure to provide any notice or payment in lieu of notice;
Failure to provide any redundancy pay; and
That the Respondent had no regard for the impact of the termination on the Applicant.
I note the Respondents submissions that its business was sold to a new owner who chose not to offer employment to the Applicant.
I consider that the Respondent had a genuine reason for the redundancy of the Applicant following the sale of his business however the Respondent failed to consult the Applicant in accordance with the Respondents obligations under the Road Transport and Distribution Award (the Award). Further, the Respondent failed to comply with the Act and/or the Award in respect of:
· providing or making any payment for notice;
· making redundancy payments; and
· putting the termination in writing.
These factors weigh towards a finding that the dismissal was unfair. Although I acknowledge it would not have changed the outcome, the Applicant was entitled to have had his dismissal handled lawfully. Further I consider that the Respondent’s action in dismissing the Applicant on a Saturday afternoon by voicemail was disrespectful and discourteous.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[40]
Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable. The was no valid reason for the dismissal and the termination was procedurally deficient.
Conclusion
I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the Act.
Remedy
It follows that the Applicant was unfairly dismissed in accordance with s.385 of the Act. Being satisfied that the Applicant was unfairly dismissed, I am required by s.390 to consider whether to order reinstatement or the payment of compensation.
At the hearing before me, the Applicant confirmed that reinstatement was not sought, and the Respondent no longer operates the business that the Applicant was employed in. Having regard to that fact and the other evidence before me, I am satisfied that an order for reinstatement would be inappropriate.[41]
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”[42]
I consider that an order for compensation is appropriate in the circumstances. The dismissal was plainly unfair and the Applicant has suffered financial loss as a result.[43]
In determining compensation, I am required to take into account all the circumstances of the case, including the matters listed in s.392(a) – (g). Any misconduct by an employee contributing to the dismissal may reduce the amount that would be otherwise ordered.[44] Compensation is not payable for shock, distress and the like.[45]
There is no evidence that an order for compensation will materially affect the viability of the Respondent. Whilst it has ceased trading, the Respondent appears to have access to funds to pay at least the accrued leave entitlements of the Applicant. No reduction in the amount of compensation is made because of any effect on the viability of the Respondent.[46]
The Applicant was employed by the Respondent since November 2020 when the Respondent took over the distribution arrangements with Lactalis. I consider the Applicant’s length of service weighs in favour of an upward adjustment of 4 weeks pay.[47]
Dealing next with the remuneration that the Applicant would have, or would have been likely to have, received if he was not dismissed,[48] I consider that the Applicant would not have remained employed any longer given that the Respondent had sold his business.
In respect of the action taken by the Applicant to mitigate his losses, I note the submissions of the Applicant. The Applicant submitted evidence that includes more than 15 enquiries on Facebook Jobs board between the date of dismissal and late September 2023. I note the Applicant undertook training to obtain his HR license and that he was successful in obtaining new employment on 9 October 2023.[49]
Having obtained employment on 9 October 2023, the Applicant’s period without remuneration up until the date of this order was limited to 12 weeks.[50]
I find that any income reasonably likely to be earned between the making of the order for compensation and the actual compensation will have no impact on the final order, given the Applicant found new employment.[51]
I note that if the Respondent had of complied with its lawful obligations to consult with the Applicant and given him notice that his services were no longer required, the Applicant would have an expectation of 9 weeks pay.[52]
Giving consideration to the above issues I find that the Applicant should be paid 13 weeks pay, based on his weekly gross pay of $1,260, this amounts to $16,380 plus superannuation of 10.5%.
I make no deduction for misconduct given my findings that there was insufficient evidence before the Commission that the issues raised by the Respondent in these proceedings had ever been raised with the Applicant until after these proceedings were instigated.[53]
I make an addition for contingencies, specifically the cost of upskilling the Applicant’s HR license which enabled him to find new employment, in the order of $530.00. The total amount is therefore $16,910.[54]
That amount is well within the statutory cap. I shall therefore order that the Applicant be paid an amount of $16,910 plus an amount of $1,719.90 in superannuation (calculated on the basis of 10.5% based on the remuneration component of $16,380). The total amount ordered for payment is $18,629.90. I have considered the impact of taxation but have elected to settle a gross amount of $16,380 in wages, $1,719.90 in superannuation and $530 reimbursement for expenses and leave taxation on the wages element for determination in accordance with the applicable law.
Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case,”[55] and I consider that as set out in my decision in the preceding paragraphs, I have done so and I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392 of the Act.
An order[56] to this effect, requiring payment within 7 days, will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
D Hawthorne for the Applicant
Mr Carew for the Respondent
Hearing details:
Brisbane 11 March 2024
[1] Digital Court Book (DCB) p.5.
[2] Jason Nuttall v The Trustee for BM Supplies Unit Trust [2024] FWC 307.
[3] Jason Nuttall v The Trustee for BM Supplies Unit Trust [2024] FWC 307.
[4] Warrell v Fair Work Australia [2013] FCA 291.
[5] Ibid.
[6] Jason Nuttall v The Trustee for BM Supplies Unit Trust [2024] FWC 307.
[7] Jason Nuttall v The Trustee for BM Supplies Unit Trust [2024] FWC 307.
[8] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[9] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[10] Ibid.
[11] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[12] DCB p.71.
[13] Exhibit R1; DCB pp.88, 91-99.
[14] DCB p.89.
[15] DCB p.90.
[16] Exhibit R1; DCB pp.84-86.
[17] Ibid.
[18] DCB p.100.
[19] DCB p.101.
[20] DCB p.102.
[21] DCB p.103.
[22] DCB p.104.
[23] DCB p.105.
[24] DCB p.106.
[25] DCB, pp. 107 - 108.
[26] DCB, pp. 109 – 111.
[27] DCB pp.112-113.
[28] DCB pp.112-113.
[29] DCB p.112.
[30] DCB p.112.
[31] Jason Nuttall v The Trustee for BM Supplies Unit Trust [2024] FWC 307.
[32] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[33] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[34] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[35] DCB pp.85-86.
[36] Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].
[37] DCB. Pp.42-44.
[38] DCB p 85.
[39] Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
[40] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[41] Fair Work Act 2009 (Cth) s.390(3)(a).
[42] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[43] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
[44] Fair Work Act 2009 (Cth) s.392(3).
[45] Ibid s.392(4).
[46] Ibid s.392(2)(a).
[47] Ibid s.392(2)(b).
[48] Ibid s.392(2)(c).
[49] Ibid s.392(2)(d).
[50] Ibid s.392(2)(e).
[51] Ibid s.392(2)(f).
[52] Ibid s.392(2)(g).
[53] Ibid s.392(3).
[54] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [54].
[55] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
[56] PR773441
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