John Ryan v Department of Human Services

[2013] FWC 4930

[2013] FWC 4930

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Ryan
v
Department of Human Services
(U2012/14460)

COMMISSIONER CRIBB MELBOURNE, 23 JULY 2013

Application for unfair dismissal remedy - further decision in regard to remedy - compensation.

[1] This decision concerns determination of an amount of compensation, in lieu of reinstatement, to be ordered by the Commission pursuant to s.392 of the Fair Work Act 2009 (the Act). It follows the decision 1 on 9 July 2013 in which the Commission found that Mr Ryan 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, Mr Ryan was directed to provide the Commission and the Department of Human Services (the Department) with the amount earned since his dismissal to the date of the decision (9 July 2013).

[3] On 12 July 2013, the Commission was provided with a pay slip 3 showing Mr Ryan’s earnings, up to 21 June 2013, of $28, 838.63. Submissions were also received, on behalf of the applicant, on the question of remuneration.4 These set out the applicant’s view as to the relevant calculations for the compensation, based on the now complete information.

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

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

[5] I have previously decided that, if Mr Ryan had not been dismissed, he would have continued to work for at least another 12 months. 5 Over that 12 month period, the remuneration that Mr Ryan would have received, or would have been likely to receive, from the Department is $77,593.00(gross).6

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

[6] These sections of the Act deal with the amount of any remuneration earned by Mr Ryan from employment in other work. This is, firstly, during the period between his 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.

[7] In this matter, with respect to the period between Mr Ryan’s dismissal and 21 June 2013, Mr Ryan earned $23,838.63. The payslip provided shows a termination date of 21 June 2013. There was no other documentation provided which showed any remuneration earned between 22 June 2013 and the date of the decision (9 July 2013). Therefore, it would appear that there was no further remuneration earned or likely to be earned between the making of the order (23 July 2013) and the actual compensation (6 August 2013).

[8] Accordingly, the only deduction from $77,593.00, for remuneration earned or reasonably likely to be earned, is $23, 838.63. This results in an amount of $53,754.37.

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

[9] As set out in the previous decision 7, I propose to make a deduction of 5% for contingencies. This results in an amount of $51,066.65.

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

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

4. Viability (section 392(2)(a)

[12] On the material before me, there is no basis to conclude that an order of compensation, payable by the Department to Mr Ryan, would affect the viability of the Department. It is therefore not a matter which in this case warrants adjustment to the amount.

5. Length of service (section 392(2)(b)

[13] Mr Ryan’s length of service with the Department was approximately 11 years.

6. Mitigation efforts (section 392(2)(d))

[14] Taking into account all of the material before me, I am satisfied that Mr Ryan made reasonable efforts to mitigate his loss and was successful - at least for a period of time.

7. Misconduct (section 392(3))

[15] As I am satisfied that Mr Ryan’s misconduct contributed to the Department’s decision to dismiss him, there will be a deduction of the compensation that would otherwise have been ordered. As indicated in the previous decision 8, on the basis of the nature of the misconduct, the reduction will be 25%.

[16] This results in an amount of $38,299.99 (gross).

8. Compensation cap (section 392(5))

[17] Since the amount of compensation of $38,299.99 (gross) is less than the compensation cap in section 392(5) of the Act ($38,796.50), I make no further reduction for that reason.

9. Instalments (section 393)

[18] There were no submissions that any amount of compensation should be subject to payment by instalments. I am not satisfied that, in this case, payment by instalments is warranted.

Conclusion

[19] Therefore, it is considered appropriate to make an order 9 that the Department of Human Services pay $38,299.99 (gross), less taxation as required by law, as compensation to Mr Ryan in lieu of reinstatement, within 14 days of the date of this decision.

COMMISSIONER

 1   [2013] FWC 4060

 2   Ibid at [174]

 3   E-mail sent on behalf of Mr Ryan, dated 12 July 2013

 4   Submissions regarding compensation, dated 16 July 2013

 5   [2013] FWC 4060 at [171]

 6   Ibid

 7   Ibid at [175]

 8   Ibid at [178]

 9   PR539228

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