Jaymon Hocking v Tackle World Adelaide Metro

[2016] FWC 381

[2016] FWC 381

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Jaymon Hocking
v
Tackle World Adelaide Metro
(U2015/7437)

DEPUTY PRESIDENT BARTEL ADELAIDE, 19 JANUARY 2016

Termination of employment – compensation.

[1] This is the final decision concerning the compensation payable to Jaymon Hocking (the applicant). It follows my finding that the applicant was forced to resign his employment on 20 April 2015. The reasons on which this finding is based are set out in the previous decision issued on 26 November 2015 (the November decision). 1

[2] I also considered the issue of compensation in the November decision. I concluded that an amount of $9,915.15 gross was appropriate but prior to issuing an order provided an opportunity for the respondent to provide any submissions on the effect of the order on the viability of the respondent’s enterprise or to seek payment of the compensation by instalment. 2

[3] The basis for the calculation of the compensation is set out at [39] – [47] of the November decision. One of the matters taken into account was the applicant’s income from casual roofing work he undertook in the period between the termination of his employment and 1 August 2015, when he commenced full time work with a fishing business, later identified as Dogtooth Distributions. The applicant’s evidence at the determinative conference was that he performed the roofing work for 5 – 6 weeks for 15 – 20 hours per week at $28.50 per hour.

[4] The respondent provided written submissions on 4 December 2015 attaching various Facebook posts which indicated that the applicant commenced employment with Dogtooth Distribution as early as June 2015.

[5] The applicant provided a written response on 10 December 2015, which included the following points:

• He was employed by Darren Hughes between 12 May and 24 November 2015.



• Mr Hughes owns multiple businesses including Hughes Roofing and Dogtooth Distribution.



• He was engaged in all aspects of Mr Hughes’ businesses until 1 August 2015 when he became permanent and worked solely with Dogtooth Distributions.



• Prior to 1 August 2015, the “work” for Dogtooth Distributions was promotional in nature. While it is not entirely clear, I understand that the applicant did not receive a wage for this work but went on fishing trips and promoted Dogtooth Distribution products on social media.



• When the applicant commenced his employment with Dogtooth Distributions in August 2015, he continued to be paid by Hughes Roofing Contractors Pty Ltd even though he no longer performed any roofing work.

[6] The applicant attached payroll advice from Hughes Roofing Contractors Pty Ltd (Hughes Roofing) for the period 20 April 2015 to 15 August 2015 and for the period 16 August 2015 to 30 November 2015. I note that the payroll advice from 16 August 2015 is consistent with the applicant’s evidence of the permanent hours he worked for Dogtooth Distribution.

[7] The payroll advice shows that the applicant performed significantly more hours and for a longer period in the casual roofing work than he had previously advised to the Fair Work Commission (the Commission). The payroll advice records that the applicant earned $6,692.00 gross in this period, whereas his previous estimate to the Commission was under $3,000.

[8] The applicant submitted that he did not intentionally mislead the Commission.

[9] On 18 December 2015 the respondent provided a written response to the applicant’s submissions. It pointed out that the applicant had not referred to any annual leave accrued whilst employed in the roofing work and that this should be quantified and taken into account in the calculation of compensation. The respondent noted that the ABN for Dogtooth Distribution is not listed on any of the pay advices provided by the applicant.

[10] The respondent suggests that the applicant is withholding evidence of his earnings with Dogtooth Distributions and that he deliberately misled the Commission in the course of the determinative conference when estimating his earnings post-dismissal.

Consideration and Conclusion

[11] Before turning to the assessment of compensation, I note paragraph 8 of the respondent’s written submission of 18 December 2015, which states:

“8. The Respondent has fresh evidence from the owner of Dogtooth Distribution which will discredit the Applicant’s previous submissions. The Respondent did not have this evidence or information until recently. Further material and statements can be provided to the Commission in that regard.”

[12] I am unclear as to what, if anything, the respondent expects this submission to achieve – there is no request for further proceedings and the respondent has not submitted the “fresh evidence” it has in its possession.

[13] These proceedings have taken an extended amount of time to complete for a variety of reasons, including the technical nature of the issues in dispute, the applicant’s inexperience in presenting a comprehensive case to the Commission and more recently the respondent’s filing, and then withdrawing of a Notice of Appeal. Accordingly it is my intention to finalise the issue of compensation.

[14] The evidence provided by the applicant indicates that his earnings from the roofing work were significantly in excess of his previous estimate. I do not believe that he deliberately misled the Commission, although he was less than diligent in failing to obtain written evidence of his earnings at the appropriate time.

[15] On the evidence before the Commission, including the emails attached to the applicant’s submissions, I am satisfied that he did not receive any earnings in the period 20 April 2015 to 1 August 2015 other than that which has now been disclosed in the payroll advice. I also accept that the roofing work was casual in nature, as evidenced by the pay rate of $28.00 per hour and the absence of any reference to leave accruals in the payroll advice.

[16] Substituting the amount of $2,743.13 (utilised in the calculation of compensation in the November decision as the earnings from the roofing work), with the amount of $6,692.00 (being the actual earnings from the roofing work based on the payslips provided by the applicant), I determine that the appropriate compensation for the applicant is $5,966.28. An order to this effect is issued with this decision.

DEPUTY PRESIDENT

Written submissions:

Respondent’s submissions, 4 December 2015

Applicant’s submissions, 9 December 2015

Respondent’s submissions in reply, 18 December 2015

 1   [2015] FWC 6519.

 2   In accordance with s.392(2)(a) and s 393 of the Fair Work Act 2009, respectively.

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