Jonathan Laird v Samurai Communications Pty Ltd T/A Trustee for the Trusted Communications Unit Trusted Business Solutions

[2021] FWC 6070

[2021] FWC 6070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 Unfair Dismissal

Jonathan Laird
v
Samurai Communications Pty Ltd T/A Trustee for the Trusted Communications Unit Trusted Business Solutions

DEPUTY PRESIDENT LAKE BRISBANE, 6 OCTOBER 2021

Application for an unfair dismissal remedy – where there was a valid reason for dismissal – where proper process not followed – where Applicant was unfairly dismissed – where Commission orders that the Applicant be paid one week’s pay

[1] Jonathan Laird (theApplicant) contends he was unfairly dismissed by Samurai Communications Pty Ltd T/A Trustee for the Trusted Communications Unit Trusted Business Solutions (the Respondent), for whom he had worked since 26 November 2019. He seeks an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] By way of background, the Applicant was notified on 23 April 2021 that his employment was to be terminated on 7 May 2021. He lodged this unfair dismissal application on 28 May 2021.

[3] The Respondent objected to the application on the basis that it was a small business employer and had complied with the Small Business Fair Dismissal Code (the Code). It was determined that the jurisdictional objection would be heard with the merits. Accordingly, directions were issued for the filing of material and a hearing was listed for 3 August 2021. The Applicant appeared on his own behalf, and the Respondent was represented by Mr Jason Jarrett, the Respondent’s Director. The Respondent also called Mr Saran Sapkota, one of the Respondent’s senior IT Engineers.

Preliminary matters

[4] Section 396 of the Act requires that I am satisfied of four matters before considering the merits of the Applicant’s application. Neither party disputed and I am satisfied, that the Applicant made his application within the 21-day period required by s.394(2) of the Act, that he was a person protected from unfair dismissal (as he earned less than the high-income threshold) and that his dismissal was not a case of genuine redundancy. The final matter in s.396 that I am required to consider is whether the Respondent is a small business and, if it is, whether in dismissing the Applicant, it complied with the Code.

[5] A small business employer is one with less than 15 employees. 1 Jason Jarrett gave evidence on the Respondent’s behalf to the effect that they had seven employees. This was not disputed by the Applicant. I am therefore satisfied that the Respondent was a small business employer and that the Small Business Fair Dismissal Code applied. I must consider whether it was complied with.

Applicant’s Material

[6] The Applicant’s evidence was that during the 18 months that he worked for the Respondent, he never had a performance review or been given any indication from the Respondent that clients were not happy with his work. He stated that he when commenced his employment, he had not been given training and was just told to go to clients’ premises and fix issues they were having.

[7] The Applicant states that on 12 April 2021, his wife was pregnant, so he requested to work half days or less hours to help her. The Respondent agreed to this arrangement. The Applicant states that at this time there was not a lot of work coming in.

[8] On 24 April 2021, the Applicant states that he came into work as the Respondent needed him to be physically present at work that day. Upon his arrival, the Applicant found a new company petrol card to use for the company car. He began his day following up on completing “job tickets” assigned to him and sensed no issues with his employment, nor with his co-workers.

[9] Later that day, the Applicant says Mr Jarrett came to his desk and told the Applicant that his employment was terminated because some clients did not want him to do work for them. The Applicant’s evidence was that he did not sense there was a lot of planning that went into this, as he had been given the fuel card earlier that day and there had been no prelude to, or indication that, the termination was going to occur. The Applicant states that his termination seemed like it was more of, “okay, we'll just shake hands, see you later” type of thing. His access to the Respondent’s network was not removed, which would suggest to him that his employment could not have been terminated for reasons of misconduct. He was given the new petrol card that morning, which he thought suggested that the Respondent had not really considered the termination and that it was more of a spur of the moment decision.

[10] The Applicant’s asserts that Mr Jarrett had verbally told him on 24 April 2021, that he needed to make the Applicant redundant given the lack of incoming work but that he would supply the Applicant with a good reference so that he could secure employment quickly, as Mr Jarrett knew the Applicant had a family to support.

[11] Following the termination, the Applicant asked if Mr Jarrett could provide a reference to the quality of the Applicant’s work, to which Mr Jarrett agreed to do once his employment had officially concluded. That letter, which was provided on 11 May 2021, was signed by Mr Jarrett and noted that the Applicant had worked for the Respondent for 18 months, that he had “shown he has natural ability in understanding the IT technician role”, “has been responsible for IT support in various industries and has been able to adapt to the different commercial requirements of our customers” and had worked both onsite and remotely. The Applicant was not happy with this letter and asked for a more positive reference. Second letter was subsequently provided.

[12] The Applicant submits that he also received a letter of termination which confirmed that “due to several needs, we have decided that the business needs to discontinue your employment contract” and that his final day would be 7 May 2021.

[13] The Applicant states that the Certificate of Dismissal he received indicated “unsatisfactory work” as the reason for termination, rather than “redundancy” or “shortage of work” as, he says, was previously discussed. The Certificate of Dismissal was not included in the documentation provided to the Commission.

[14] The Applicant states that he sought work as soon as he was notified that his employment would be terminated and was successful in obtaining a job interview. He provided the prospective employer with the Respondent’s reference letter and they called Mr Jarrett to discuss the reference, as it did not state why the Applicant left the Respondent’s employ. The Applicant’s evidence was it was his understanding – from a later conversation with a human resources person at the prospective employer – that Mr Jarrett explained to that person that the Applicant was “quirky” and that his employment had been terminated because they thought he had bad networking skills.

[15] The Applicant stated that in the 12 months prior to leaving, he did not receive any negative feedback from customers. He conceded that occasionally he would receive feedback from Mr Jarrett or other colleagues but that he would explain the issues he had encountered in performing work and why he had taken the action that he had. Further, the Applicant said he had received positive feedback from customers and had even been given gifts in thanks for his good work.

[16] Within his submissions, the Applicant provided a number of references from previous clients. In summary, these provided that:

•  the Applicant had consistently delivered high quality work;

•  the Applicant is a punctual, reliable and enthusiastic person. He was friendly, relaxed and approachable, remaining cognizant of the complex relationships that occur within a customer’s business; and

•  the Applicant was professional and hard working.

[17] The Applicant therefore submits that he was unfairly dismissed because there was no valid reason and the proper process of giving him notice and an opportunity to respond did not occur.

Respondent’s Material

[18] The Respondent maintains that it had a valid reason to dismiss the Applicant and that those reasons had been communicated to the Applicant.

[19] Mr Jarrett’s evidence was that he began getting complaints from customers about the Applicant’s performance in around March 2020. These complaints included that the Applicant was:

•  taking too long to do simple tasks;

•  going on tangents and not able to do basic trouble shooting;

•  not listening to instructions;

•  talking to customers with long winded explanations as to why his job is more complicated than initially thought and confusing them so much they just wanted him to stop talking;

•  failing to fix problems or causing more issues when he works on things and making things worse than when he started; and

•  making spelling mistakes and lacking simple attention to detail. For example, people’s names would be spelt incorrectly when setting up accounts or email naming structures were not followed when creating new accounts.

[20] The complaints were not just about technical issues, but the way in which the Applicant would interact with the customers. In addition to these issues, the Applicant was also spoken to for not following instructions which resulted in cost blowouts.

[21] Mr Jarrett’s evidence was that some customers had cancelled their contracts with the Respondent altogether and had told him it was entirely and directly due to the Applicant’s work. Other customers had requested that the Applicant not be sent to them and would rather wait for another team member to be available to assist them. Following the termination, Mr Jarrett stated that these customers expressed their relief to know that the Applicant was no longer employed by the Respondent.

[22] In addition to the customer complaints, there had also been internal complaints about the Applicant from colleagues who would be required to fix the Applicant’s mistakes in addition to their own work. This put a lot of pressure on those staff. One such staff member was Mr Sapkota.

[23] Mr Sapkota’s evidence detailed the following specific complaints he received about the Applicant that he was required to fix:

•  A customer reported and issue when opening a PDF. The Applicant worked on this computer, fully crashed it and then advised the customer they needed to replace the hardware. Mr Sapkota was able to recover the computer and hand it back to the customer the next day;

•  The Applicant was tasked to fix the remote access and VPN for one user but after spending a lot of time on it, managed to break the VPN connection for all users. Consequently, Mr Sapkota had to step in and fix the VPN profile;

•  The Applicant had to deal with a customer’s onsite file server and Cloud back up. There was already a Cloud back up running and the only thing he needed to do was upgrade the storage limit on the Cloud. However, he managed to break the entire connection and when he reconnected it, he did so in a way that caused the duplication of every file in the Cloud and onsite server. This meant the customer had to go through all their important files and delete the duplication. Mr Sapkota had to attend the site and setup the backup in its original form;

•  The Applicant was tasked to setup a customer’s on site firewall router and WiFi for guest users. During this task, the Applicant left the guest Wi-Fi open, leaving the customer’s network vulnerable to data theft. Mr Sapkota had to attend the site and set up a secure Wi-Fi connection; and

•  The Applicant installed a customer’s Sophos endpoint to a computer. This is a subscription-based product which ended up being wrongfully billed to a different customer.

[24] The Applicant’s performance issues meant that Mr Sapkota was often fixing the Applicant’s mistakes, as well as doing his own work. He would make the Applicant aware of each mistake and demonstrate the correct way to do a particular task. This was not uncommon. There would be an evaluation after every job and if there were issues, they would be raised and Mr Sapkota would explain how things should have been done. However, Mr Sapkota’s evidence was that the Applicant would often respond by providing reasons as to why he had done what he had in any given situation but would not accept any fault in the problem that had arisen.

[25] Mr Jarrett would undertake a similar process, whereby when complaints were received, he would pass on that feedback to the Applicant. When Mr Jarrett informed the Applicant about the complaints received regarding his performance, the Applicant would often tell him the reasons he did what he did. It became clear to Mr Jarrett that the Applicant did not listen to what the customer was asking for and the customers did not feel that the Applicant was competent to do the work. 2 The Applicant would consistently maintain that it was the customer that was the problem and not him. The Respondent states that the Applicant did not listen to feedback, nor was he showing any improvement in his work after being told of these concerns.

[26] Though this feedback had been given to the Applicant on multiple occasions, Mr Jarrett acknowledged that he was not the sort of person to threaten someone’s employment when he did so. He stated he would instead try to work things through with the Applicant to fix the issues. Generally speaking, he adopts an informal and collegiate way of communicating and reviewing the work of his staff. Given the small size of the business and the way in which it operates, it was commonplace for staff to speak, and give feedback, to one another informally on a daily basis. The process was the same with the Applicant with respect to the issues that were occurring with his performance. Mr Jarrett said that was why there were no express statement prior to the termination discussion that if the Applicant’s performance did not improve, his employment would be terminated. Mr Jarrett said that breaking bad news like that of the termination of someone’s employment is one of the hardest things he has to do. He apologised if his process was imperfect but said that it was difficult for him and he did his best.

[27] Mr Jarrett states that the ultimate decision to terminate the Applicant’s employment was triggered by a complaint from a client, who had already complained about the Applicant on a previous occasion and did not want him performing work for them anymore. Mr Jarrett stated that following this email, he slept on it for a couple of days, but decided that the Applicant could not continue at the company as they had lost confidence in him.

[28] The Respondent did not submit that the Applicant did everything wrong or that he did not perform some good work. However, the negative feedback was frequent and consistent enough over a period of time that some customers would request not to have him complete their work and would instead wait for someone else to do it. Other staff were being asked to do his work along with their own. The Applicant’s position thus became untenable.

[29] Mr Jarrett had nothing against the Applicant, but had to make a decision based on what was best for the business. Mr Jarrett said that prior to terminating the Applicant, Mr Jarrett confirmed with Mr Sapkota that he could handle the extra work if the Applicant was terminated.

[30] On 23 April 2021 at around 3:30pm, Mr Jarrett informed the Applicant that his employment would be terminated in two weeks time. This time was deliberately chosen so the Applicant would have the weekend to further look for new jobs rather than, for example, being told the following Monday. The news was broken to the Applicant in person, at which time a full explanation was given to him about the problems listed above and the ongoing complaints that had been received about his work. Mr Jarrett said these reasons should not have been a shock to the Applicant given they had previously raised in informal discussions.

[31] Mr Jarrett states that the Applicant requested that they officially make him redundant rather than being let go due to poor performance. However, this would have been untruthful as they did not have a shortage of work, so that request was denied. Mr Jarrett states they did agree to give the Applicant a letter of reference to help him find a new job once his employment had ceased. Mr Jarrett states the Applicant went home after the conversation in the work car as per usual and he did not argue about the reason for his dismissal during the conversation.

[32] The Respondent gave the Applicant two weeks off on full pay to allow him more time to find new employment as a gesture of goodwill. Mr Jarrett’s evidence was that notwithstanding the decision to terminate the Applicant, he did not think it necessary to turn off the Applicant’s system access immediately. He was, after all, still technically employed for two more weeks. Similarly, the Applicant was provided with the fuel card, in case he needed fuel while using the car over the weekend.

[33] Mr Jarrett’s evidence was that on 11 May 2021, the Respondent sent the first reference letter to the Applicant. On 13 May 2021, the Applicant called Mr Jarrett and complained that it had the wrong title and was not good enough. Later that day, Mr Jarrett provided a new one with more positive comments.

[34] The Applicant later called Mr Jarrett, accusing him of not being positive enough when someone called to check the reference. Mr Jarrett stated that he had given the caller a “really good glowing review about [the Applicant], his work, and they picked on a couple of little statements that may have come out”.

[35] In light of the evidence above, the Respondent submits that the Applicant was not dismissed unfairly because there was a valid reason, he was told of that reason and given two weeks notice, during which he was not required to work so that he could devote his time to seeking employment. That said, the Respondent did acknowledge that the Applicant had not expressly been told that his employment was at risk prior to the termination, though he had repeatedly been made aware of the shortcomings in his performance.

Consideration

[36] One preliminary matter I should address is the question of where the dismissal took place. It was agreed that it was somewhere in the Respondent’s office. The Applicant stated it was at his desk, Mr Jarrett thought it was at the board table. Mr Sapkota remembered the conversation occurring at the Applicant’s desk. It is not necessary for me to determine where the conversation occurred. The Applicant suggested that Mr Jarrett’s poor recollection of the location reflects his memory of the whole conversation. I do not accept that. Mr Jarrett conceded that perhaps he did not recall the exact location correctly – both the Applicant’s desk and the board table are within metres of each other – but was consistent and considered when providing evidence and answering questions about the conversation with the Applicant about his termination.

Jurisdictional objection – did the Respondent comply with the Code?

[37] Section 396 of the Act requires consideration, prior to the merits of the matter, of whether the dismissal was consistent with the Code. The Code, which applies to dismissals after 1 July 2009, states:

“ Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[38] The Respondent dismissed the Applicant due to complaints received from customers, which saw many of them no longer wanting to engage the Respondent, unless another technician was responsible for the work, and the frequent mistakes made by the Applicant which required another of the Respodent’s employees to fix the issue, in addition to their own work. This, coupled with the fact that when complaints were drawn to the Applicant’s attention he sought to deflect responsibility to the customer themselves, meant that it was no longer viable for the Respondent to employ the Applicant. Though I am of the view that this consistent underperformance consistutes a valid reason for dismissal, it does not amount to the kind of misconduct that would warrant summary dismissal.

[39] I am satisfied that the issues with the Applicant’s performance were drawn to his attention as they arose in an informal matter and the Applicant should have understood that his performance needed to improve. He was offered an opportunity to respond to each complaint in informal discussions but deflected any blame. However, the Applicant was not expressly warned verbally, or in writing, that he risked being dismissed no improvement occurred, as is required by the Code. While I accept that Mr Jarrett did the best he could in relation to the Applicant’s dismissal, the process fell short of that required by the Code.

[40] Accordingly, I must find that the Applicant was not dismissed pursuant to the Code. The jurisdictional objection therefore fails, and I must turn to the merits of the Applicant’s substantive application.

Merits – was the Applicant unfairly dismissed?

[41] 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.

[42] I am required to consider each of these criteria to the extent they are relevant to the factual circumstances before me. 3

(a) whether there was a valid reason for the dismissal

[43] To be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 4 and should not be “capricious, fanciful, spiteful or prejudiced.”5 Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.

[44] As indicated above, the Applicant’s position became untenable because multiple customers indicated they did not want him performing their work and would instead wait for another technician to become available or find another company to service their technology needs. On multiple occasions when the Applicant did perform work, the Respondent received complaints about the time it took for him to do so, the attitude with which he addressed the customers and, in the most troubling cases, instances where his mistakes made things worse than they had been when he arrived and other staff members had to rectify the issues. When these issues were brought to the Respondent’s attention, they were raised with the Applicant who was dismissive and did not accept responsibility for his lacklustre performance. Indeed, the Applicant continued to deflect responsibility from the grievances in the hearing.

[45] I accept that not all the work performed by the Applicant fell short of the standard required. Indeed, he has provided references from some clients who praise his work and his communication with them. However, I accept the Respondent’s evidence that the Applicant’s position became untenable because those experiences were not common to all the clients for which the Applicant performed work and that consequently, the Respondent was in the position of putting more pressure on other staff and delaying work that shoud have been able to be performed by someone in the Applicant’s position. If they did not, they risked losing clients.

[46] Consequently, I am satisfied that the Respondent had a valid reason to terminate the Applicant’s employment.

(b) and (c) whether the person was notified of that reason and had an opportunity to respond

[47] Based on the evidence provided and submissions made, I am satisfied that the Applicant was made aware throughout the course of his employment of each of the instances which ultimately became the foundation for his dismissal. However, he was not notified in any specific or formal way of the reasons the Respondent sought to rely on to justify his dismissal until after the decision had been made. Consequently, the Applicant did not have a sufficient opportunity to respond to each of the allegations.

(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

[48] The Applicant did not have a support person present during the meeting at which the Respondent terminated his employment.

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal

[49] As stated above, it is clear the Applicant had been counselled about the issues with his performance in informal ways as and when issues arose. However, these discussions, while putting him on notice that there were shortcomings in his performance, did not amount to formal warnings.

(f) and (g) the degree to which the size of the employer’s enterprise and the absence of dedicated human resource management expertise would be likely to impact on the procedures followed

[50] The Respondent is a small business for which Mr Jarrett is responsible. The process of of dismissal in this case did not follow that which was required or what would have been expected of a larger enterprise or of one that had someone with dedicated human resource expertise. That is not intended as a criticism of Mr Jarrett. He himself acknowledged that the process undertaken may have been imperfect, but that he found the process of terminating someone’s employment difficult and unfamiliar and that he had done the best he could.

(h) any other matters that the FWC considers relevant

[51] I have regard to the Applicant’s personal situation, to the extent that it was raised, and his displeasure with the reference provided by the Respondent to his prospective employers.

Conclusion

[52] I am satsifed based on the evidence provided that the Respondent had a valid reason for terminating the Applicant’s employment. Unfortunately, however, the process of dismissing him in this case fell short of that which is required and consequently, I find that he was unfairly dismissed.

Assessment of Compensation

[53] Section 390(3)(b) of the Act provides that the Commission may only issue an order for compensation if it is appropriate in all the circumstances. Compensation as a remedy is designed to compensate an unfairly dismissed employee, in lieu of reinstatement, for losses reasonably attributable to the unfair dismissal, within the bounds of the statutory cap on compensation that is to be applied. 6

[54] Having regard to all the circumstances of the case, I consider that some order for payment of compensation to the Applicant is appropriate. It is therefore necessary for me to assess the amount of compensation that should be ordered to be paid to the Applicant, having regard to the criteria under s.392(2) of the Act.

[55] The established approach to assessing compensation in unfair dismissal cases was first set out in Sprigg v Paul Licensed Festival Supermarket, 7but has been applied and developed by Full Benches of the Commission in the context of the current Act.8 In short, the authorities indicate that assessing compensation involves a four step process:

“Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.”  9

[56] In Bowden v Ottrey Homes Cobram and District Retirement Villages, the Full Bench noted that in relation to the fourth step, the usual practice is to settle a gross amount and leave taxation for determination. 10

Consideration of the factors in s.392(2) and the Spriggs formula

[57] Given the Respondent had a valid reason to dismiss the Applicant, I am satisfied that if a proper procedure had been implemented to terminate his employment, the Applicant would only have been employed for another week. That would have been enough time for the Respondent to provide a show cause notice to the Applicant and allow him an opportunity to respond. No evidence has been provided in respect of any monies earned since termination.

[58] The Respondent does not contend that the making of a compensation order in favour of the Applicant will adversely impact on the viability of its business enterprise. Accordingly, no adjustment will be made on account of this.

[59] The Respondent has noted that Mr Laird had been employed for 18 months. This length of service does not justify any adjustment to the amount of compensation. There is no evidence regarding the Applicant’s successful attempts to mitigate his loss, beyond his attempts to seek futher employment.

[60] I must also consider whether to discount the amount of compensation for contingencies. This step is a means of accounting for the possibility of the occurrence of contingencies to which the Applicant was subject, which might have brought about some change in earning capacity or earnings. 11 While a 25% discount was appliced in Sprigg, this amount was decided based on the facts of the case rather than a statement of what is generally appropriate.12 In assessing the impact of contingencies, the Commission must exercise its broad discretion and consider both favourable and unfavourable contingencies.13 It is important to note that contingencies only apply to the anticipated period of employment.14 Given my conclusions above regarding the length of time the Applicant would like have been employed but for the unfair dismissal, I do not consider it necessary to apply any contingencies to the compensation awarded.

[61] There are no other relevant matters that I am required to take into consideration.

[62] The Applicant did not commit any misconduct, so this has no relevance to the assessment of compensation. I note that in accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress. As I have previously noted, the Applicants each earned below the high income threshold and therefore the compensation cap is 26 weeks’ compensation. No application has been made to date by the Respondent for any amount of compensation awarded to be paid in the form of instalments. 15

[63] Taking into account each of the factors in s.392(2) of the Act and applying the Spriggs formula, I am satisfied that the compensation awarded to the Applicant shoud be in the order of one (1) week’s pay.

[64] Accordingly, I order that the Respondent pay to the Applicant the equivalent of one (1) week’s pay.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR734614>

 1   Fair Work Act 2009 (Cth) s.23.

 2   Transcript at PN119.

 3   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), at [69].

 4   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), (1995) 62 IR 371, 373.

 5   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333 (7 July 1995), (1995) 62 IR 371.

 6   Deborah Kable v Bozelle, Michael Keith T/A Matilda Greenbank[2015] FWCFB 3512 at [17].

 7   Sprigg v Paul Licensed Festival Supermarket (1998) 88 IR 21.

 8   Bowden v Ottrey Homes Cobram and District Retirement Villages [2013] FWCFB 431; Alison Thurston v Bunbury Medical Imaging [2021] FWCFB 280 at [32].

 9   Sprigg v Paul Licensed Festival Supermarket (1998) 88 IR 21; see also Ellawala v Australian Postal Corporation PRS5109.

 10   Bowden v Ottrey Homes Cobram and District Retirement Villages [2013] FWCFB 431 at [45].

 11   Ellawala v Australian Postal Corporation Print S5109 at [36]; Hastings v Vantage Holdings Australia Pty Ltd [2021] FWC 5035 at [202].

 12   Sprigg v Paul Licensed Festival Supermarket (1998) 88 IR 21 at [41].

 13   Ellawala v Australian Postal Corporation, Print S5109 at [39].

 14   Enhance Systems Pty Ltd v Cox, PR910779 at [39], citing Ellawala v Australian Postal Corporation, Print S5109 at [43].

 15   Fair Work Act 2009 (Cth) s.393.