Karen Templeton v McLeod Country Golf Club Inc T/A McLeod

[2015] FWC 5744

[2015] FWC 5744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karen Templeton
v
McLeod Country Golf Club Inc T/A McLeod
(U2015/5345)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 24 AUGUST 2015

Application for relief from unfair dismissal.

Summary: unfair dismissal remedy - performance issues - misconduct – compensation

[1] This decision concerns an application by Ms Karen Templeton under section 394 of the Fair Work Act 2009 (“the Act”) for an unfair dismissal remedy in relation to her dismissal by the McLeod Country Golf Club (“the employer”) on 29 April 2015.

[2] For the purposes of this application, Ms Templeton is a person who is protected from unfair dismissal under the Act.

[3] During the period 10 October 2014 to 29 April 2015, a period of a little over six months, Ms Templeton performed duties as a Senior Accounts Manager for the employer. Ms Templeton’s contract of employment (which was an overlay to the Registered Licensed Clubs Award 2010 (“the Award”)) indicated that Ms Templeton would receive - during the six-month probationary period that applied - advice, training and guidance to help her become familiar with and competent in performing the work to which she had been employed to perform.

[4] The contract of employment also stipulates that at the conclusion of the six-month probationary period a review will be conducted to enable the employer to ascertain whether she would have continual or ongoing employment.

[5] As mentioned above, Ms Templeton’s employment came to an end on 29 April 2015 (on the basis of one week’s notice paid in lieu). The termination of employment correspondence stated relevantly as follows:

“During the past six months we have advised you of areas that required improvement including incorrect coding of invoices, GST not being allocated correctly and bank reconciliation not kept up to date and frequent general errors occurring.

“The McLeod Country Club views your probationary period at unsatisfactory and we will not be providing you with ongoing employment.”

[6] Ms Templeton contends that in the period leading up to her dismissal the employer’s Treasurer –Ms Jenny Smith - required her to access financial information from previous financial years (which extended back to 2012) that were “in a mess”. Ms Templeton complained that Ms Smith was responsible for the confused state of the prior financial reports despite her having been a qualified accountant with her own business. Ms Templeton claimed that Ms Smith could not assist in resolving the outstanding problems with the financial accounts as they had been. Ms Templeton claimed that she indicated to Ms Smith that she had not had sufficient training to address the problems in the prior financial reports and suggested an outside accountant should be engaged to assist in this respect.

[7] E-mail correspondence to Ms Smith dated 28 April 2015 indicated that Ms Templeton had agitated her concerns regarding the status of the prior accounts and the lack of corporate knowledge in respect of how those accounts had been compiled and absence of any guidance by any other persons in order to assist her in resolving the issues.

[8] Ms Templeton contended that other than problems which arose in respect of a prior period for which she was not responsible, “everything was fine”.

[9] Ms Templeton complained that having expressed her views about the condition of the prior financial reports, the employer took offence – or more correctly Ms Smith took offence - and Mr Clancy dismissed her the next day without notice.

[10] Ms Templeton further complained that she was not given any opportunity to respond to any of the allegations and was not notified in advance of the reason for her dismissal or of the meeting at which she was to be dismissed. Ms Templeton also claimed that “a qualifying period in excess of six months is inherently unfair”. Ms Templeton’s argument in this respect was that the decision to dismiss her was taken outside her probationary period, though the dismissal correspondence indicated the decision to terminate her employment was taken in respect of her performance over the course of her employment (which exceeds by a short time her probationary period).

[11] The employer contended that Ms Templeton was initially employed to work over three days per week but had to work well beyond that in order to complete the necessary tasks.

[12] Ms Smith was said to have been active in assisting with Ms Templeton on a regular basis to provide training and to work through any issues with the accounts.

[13] In the course of so doing Ms Smith came to the view that Ms Templeton’s work was ineffective. On 18 January 2015 - some months prior to Ms Templeton’s dismissal - Ms Smith e-mailed Mr Clancy to the effect that tensions had arisen between herself and Mr Templeton because Ms Smith had uncovered inconsistencies with the coding of transactions effected by Ms Templeton.

[14] It was claimed that Ms Smith had spent seven hours with Ms Templeton in reviewing the books and carrying out bank reconciliations for the previous month when the reconciliations ought to have been completed on a weekly basis.

[15] In Ms Smith’s view, other problems also were evident in respect of the general preparation of the employer’s financial affairs. Ms Smith was said to have sent an e-mail to Ms Templeton indicating her expectation that despite Ms Templeton being on a “steep learning curve” she needed to be “more vigilant in the future”. Ms Smith also indicated that she did not believe it should be necessary for her to spend a whole day in the office reviewing Ms Templeton’s work.

[16] The same day as Ms Smith e-mailed the claims and in the terms set out above, Ms Smith also e-mailed Ms Templeton. The e-mail is very lengthy and identifies a wide range of issues in the accounts in respect of which Ms Smith brought Ms Templeton’s attention. These included the requirement to produce the monthly and quarterly formal reports for the financial meeting (which had not occurred to date for reason that the bank reconciliations for December 2014 had not been finalised); consistency in and coding of transactions; the monetisation of WorkCover costs; various GST issues; equipment rental payments; and journal entries in respect of government charges and the alignment of these with budgeted expenses. The e-mail also included some 11 questions and queries about particular entries which require clarification and review. The correspondence is quite prescriptive and lengthy.

[17] Ms Smith apologised for the long list of matters that she had raised but indicated that she was available to discuss them with Ms Templeton.

[18] The tone of the e-mail is not hectoring or belligerent.

[19] In accordance with Ms Smith’s diary, on 20 January 2015 Ms Smith met with Ms Templeton and discussed the content of the e-mail as summarised above. Ms Smith’s diary entry includes that Ms Smith advised Ms Templeton “that she needed to concentrate more and that I needed her to be more focused on her role.”

[20] At this meeting Ms Smith also raised a concern with Ms Templeton that Ms Templeton had been putting down on her time sheet that she was starting work at 6:30 AM. However, the security code and security locks that recorded the date and time to entry indicated that Ms Templeton had not been starting work at that time at all. Ms Templeton was informed by Ms Smith that Ms Smith would extend her support to her for the next three months but if she didn’t improve her performance in that time then Ms Templeton’s employment would not be maintained.

[21] The diary note reported by Mr Clancy indicates that Ms Templeton was said to have replied:

“If I can’t get this all sorted out in the next 3 months then I will leave”.

[22] It was further claimed that on 11 February 2015 Ms Templeton authorised and paid out of club money her own personal invoice for Goodyear Autocare, to the value of $600. This transaction occurred at a time that Ms Smith and the General Manager were both on leave.

[23] On 25 February 2015 Ms Smith approached Ms Templeton to enquire into this transaction.

[24] Ms Templeton was said to have responded by explaining that the transaction became mixed up inadvertently in the invoices and there was no dishonesty intended. At that time it appears that Ms Smith reached the view that given that Ms Templeton had made so many mistakes in the ledgers then it was feasible that her explanation was true.

[25] On 13 March 2015 Ms Smith again e-mailed Ms Templeton and this time set out a further range of problems and issues in the accounts (in relation to the attribution of golf day revenues in the ledgers).

[26] In her e-mail to Ms Templeton, Ms Smith set out the process by which this particular problem could be resolved.

[27] The e-mail however also raised other issues in very considerable detail in relation to invoicing of club events and various transactions within those events. Ms Smith’s e-mail to Ms Templeton set out in very specific terms how to code the particular invoices in each case. The e-mail also set out the wider concerns by Ms Templeton in respect of discrepancies between various ledgers and the importance of raising invoices promptly to ensure that income is recorded in the relevant month.

[28] Ms Smith’s e-mail also went into some very considerable detail about confusions that appeared in the debtor/creditor review process and indicated how these problems may be resolved in each particular case.

[29] Ms Templeton’s e-mail concludes by accepting that there is a lot of work to do to bring order to the accounts, and again offering to Ms Templeton an opportunity to organise assistance for her in this respect.

[30] On 1 April 2015 Mr Clancy, the General Manager, met with Ms Templeton. Whilst in the course of facilitating a paid leave request for Ms Templeton, Mr Clancy indicated that Ms Templeton’s six-month anniversary would occur whilst she was on leave and that when she returned he would like to have a formal meeting with her. At that time Mr Clancy indicated, so he said, that he had concerns that he needed to discuss with her upon her return.

[31] Upon Ms Templeton’s return to work on 21 April 2015, Ms Templeton was informed that in the course of her absence errors had been identified in her work which needed to be discussed. But before doing so it was necessary for Ms Templeton to complete the monthly reports for the financial meeting to be held the next day.

[32] At that time Mr Clancy also e-mailed Ms Templeton a list of difficulties in the financial report that had been identified. Again the list is very detailed and lengthy and covers a very wide range of alleged discrepancies in relation to overdrawn accounts, the gaming account being out of balance, incorrect balances in the prize/grand account, interest on loans not having been accounted for, and double claiming of GST which Mr Clancy said was “once again totally unacceptable. The e-mail included the further comment that “the whole bank reconciliation process is totally unsatisfactory”. There were also a large number of other issues with the accounts identified in the e-mail.

[33] Ms Templeton’s conduct was also a cause for concern by the employer. On 27 April 2015 Ms Templeton called in sick for work. However, on that same day, a staff member from the golf club communicated to Mr Clancy that on the prior day Ms Templeton had played golf (on 26 April 2015) and come into the clubhouse afterwards and ordered wine and a bowl of chips. Ms Templeton had allegedly stated that she would not pay for the wine and chips and walked off.

[34] On 28 April 2015, Mr Clancy claimed that he met with Ms Templeton to discuss her conduct and her overall performance. Mr Clancy said that he advised Ms Templeton that it was unacceptable to not pay for the wine and chips and that her overall performance was unsatisfactory. He indicated to Ms Templeton that he would raise the issue of her ongoing employment at the board meeting that night and that he would formally meet with her the following day to discuss the outcome. Mr Clancy claimed that he advised Ms Templeton at that time to bring a support person if she felt one was required.

[35] Following that conversation, Ms Templeton sent an e-mail to Ms Smith admitting that there were errors with her GST accounting but those and other errors were not her making and that she should be given assistance by an external accountant.

[36] The following day, on 29 April 2015, Ms Templeton was dismissed from her employment.

LEGISLATIVE REQUIREMENTS

[37] The relevant legislative provisions arise under s.387 of the FW Act reads as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.

CONSIDERATION

(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)

[38] The difficulty I have with Ms Templeton’s evidence is that it admits of no error or deficiency in the performance of her role as accounts manager, and is unauthentic for that reason. Ms Templeton complains that the legacy issues were so overwhelming and so insurmountable that every concern expressed by Ms Smith and Mr Clancy, even about day-to-day or weekly data input matters, was attributable to that cause. This was an unconvincing narrative. Moreover, Ms Templeton acknowledged Mr Clancy’s concerns in January 2014 about her performance and the state of the accounts and indicated they were surmountable, which is not consistent with the current narrative that the legacy issues were insurmountable.

[39] Ms Smith did not gild her evidence in the same manner – she conceded there were difficulties with the software programme and that some legacy issues were evident that affected the performance of Ms Templeton’s duties. It was evident to me that Ms Smith’s claims were not dogmatically held or self-serving.

[40] The substantial e-mail correspondence referred to and tendered in the course of the proceedings represents contemporaneous communications between Ms Smith and Mr Clancy and Ms Templeton about an extremely wide range of issues including very detailed performance issues in respect of her role as an accountant.

[41] As I have indicated above, these e-mails are not belligerent or hectoring in tone (though Mr Clancy’s concerns had deepened obviously by April of 2015).

[42] This, along with the detail provided by Ms Smith as to the scope of her concerns with Ms Templeton’s work did much to persuade me that there was a marked element of truth in the employer’s position.

[43] It is true, too, to my mind that Mr Clancy had concerns about Ms Templeton’s conduct arising from her refusal to pay for food and wine during a private golf day at the club the weekend prior to her dismissal. Ms Templeton claimed the incident never occurred, but Mr Clancy had a clear and structured recollection of the conversation about the incident as reported and the conversation with Ms Templeton the following Tuesday. I prefer Mr Clancy’s evidence and believe Ms Templeton has attempted to conceal her conduct on that day.

[44] That said, the incident did not constitute conduct that was so reprehensible as to warrant dismissal (in its own right). But it did add to the weight of Mr Clancy’s deliberations as to whether to support Ms Templeton’s continuing employment, and reasonably so. The incident raised an issue in Mr Clancy’s mind about his trust and confidence in Ms Templeton as an employee.

[45] Yet, despite all of this, I do think that Ms Templeton was largely left to perform a role in which she was compromised by the range of historical problems and some software issues which compromised her performance to a large measure. Ms Templeton was required to unravel the methods and processes of a long standing prior employee who had not possessed any formal accounting qualifications, and to pick up a range of responsibilities intended to be performed by another administrative employee. She was not exposed to any daily guidance as might ordinarily be the case (given Ms Smith’s voluntary role as Treasurer and absence of continuous oversight of Ms Templeton) and this, I think, did destabilise Ms Templeton’s performance to an important extent.

[46] Though it may be a matter of fine balance, in my view Ms Templeton’s employment was brought to an end prematurely, and without close regard to the wider factors that had compromised her performance on the whole. Thus the employer therefore did not have a valid reason for Ms Templeton’s dismissal.

[47] Having so concluded, I acknowledge though that the employer was not without a number of reasonable and sound concerns about Ms Templeton’s performance as a competent accounts manager.

[48] As is obvious from the above, this is not a case in which one party’s evidence has been preferred over another’s, in a global sense. It has been necessary, rather, to consider the elements of each party’s evidence discretely.

(b) whether the person was notified of that reason

[49] The e-mail correspondence from Mr Clancy to Ms Templeton indicates that Ms Templeton was put on notice that her continuing employment was under consideration in January 2014. Ms Templeton was also informed by Mr Clancy on 1 April 2014, prior to taking leave, that he (Mr Clancy) had concerns about Ms Templeton’s employment but that he would not pursue these until after she (Ms Templeton) returned from leave. Ms Templeton was so notified prior to a meeting with her at which the dismissal decision was communicated.

[50] That said, Ms Templeton did not hear anything else of any substantive effect from her employer after the warning of January 2014 (and the comment of 1 April 2014), until she was informed that her employment was under review on 28 April 2014. Ms Templeton was dismissed on 29 April 2009. It cannot be said that Ms Templeton was dismissed on the basis of prior notice of the valid reason upon which the employer was to rely.

c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[51] It is not apparent to me that Ms Templeton was provided an opportunity to respond to the reasons for her dismissal at the meeting of 28 April 2015 or 29 April 2015. The meeting, rather, was a means by which Ms Templeton was informed that her employment was terminated.

(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

[52] Ms Templeton was provided an express opportunity to bring a support person to the meeting during which her employment was terminated. Mr Clancy provided prior notice that the meeting would concern her continuing employment and offered Ms Templeton an opportunity to bring such a person to the meeting to perform such a role should she so desire.

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

[53] The correspondence to which I have referred above demonstrates that the employer over a period of time had brought its concerns to Ms Templeton’s attention and sought improvements in the performance of her duties. Ms Templeton was provided, therefore, opportunities to review her performance and to meet her employer’s reasonable expectations in respect of capable exercise of her duties. Indeed, Ms Templeton appears to have been confident she could meet her employer’s expectations in this regard.

(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

[54] The employer employs up to 27 employees (in a peak period when casual employees are accounted for). It is a smaller business. A reasonable inference may be drawn that the size of the employer’s enterprise affected the employer’s decision making in relation to the dismissal procedures.

(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

[55] The employer had no dedicated human resource expertise at its disposal. Mr Clancy effected the dismissal based on his managerial experience alone. The absence of human resource expertise impacted on the procedures followed in effecting the dismissal of Ms Templeton.

(h) any other matters that FWA considers relevant

[56] Ms Templeton was an employee for a short term only - a little over six months. The evidence does suggest that the dismissal has had a detrimental impact upon Ms Templeton’s familial situation. But equally, virtually by definition, as it were, a dismissal has negative effects on an employee in any given set of circumstances.

[57] It is to be noted that there were allegations made against Ms Templeton in respect of theft. I have not turned to these issues in my considerations. Ms Smith for her part could not reach a conclusion that Ms Templeton had acted to perpetrate a fraud on the club by charging $600 for auto repairs to the club’s accounts (despite her obvious suspicions). The claim was also made that Ms Templeton had misrepresented her skills and qualifications for the purposes of acquiring employment. Again, however, this matter was not pressed in the proceedings and very little detail exists to illuminate the claim.

[58] No point taken in the employer’s evidentiary case in respect of claims as Ms Templeton having misrepresented her time sheet. This claim therefore was left unexplored. Notwithstanding this, the claim, appears not to have been expressly relied upon by Mr Clancy, for purposes of justifying Ms Templeton’s dismissal, and he did not press the matter as having any priority in his evidence.

[59] Though the employer made mention of the probationary period in its dismissal correspondence, Ms Templeton’s performance was evaluated over a period in excess of and beyond the six month probationary period that applied to her employment. Mr Clancy indicated in the course of the proceedings that he did not rely upon the probationary period as such, for purposes of his defence. He did imply, however, that had Ms Templeton not been granted approved leave at the time that she was (in early April 2014 for two weeks) the circumstances may have been different. This is because the probationary period expired during Ms Templeton’s period of approved leave.

Conclusion

[60] The employer did not, for the reasons I have given above, possess a valid reason for the dismissal. There is also a measure of harshness in the dismissal procedure, which I have highlighted above: in particular, Ms Templeton was not afforded an opportunity to respond to the allegations made against her by her employer that could challenge its claims in relation to her performance.

[61] Had Ms Templeton been provided with an opportunity to respond to her employer’s detailed concerns over a period of time prior to the meeting it is unlikely she would have convinced her employer of her continuing suitability for the role as accounts manager (given the volume of the concerns with her performance and the recently emerging trust related concerns).

[62] Again, though it is a matter of fine balance, I conclude that Ms Templeton was harshly, unjustly or unreasonably dismissed from her employment when all the circumstances are considered.

[63] Having so concluded I turn to consider remedy under s.390 of the Act.

REMEDY

[64] Section 390 of the Act reads as follows:

Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division (2)) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

[65] Ms Templeton is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise a discretion as to whether she can be reinstated. Section 391 of the Act provides as follows:

391 Remedy —reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

[66] In the circumstances of this matter it is not appropriate that Ms Templeton be reinstated or reemployed with the employer. Ms Templeton does not seek reinstatement and it would serve neither her nor the employer’s interests to make an order contrary to that preference. If I were to do so, it would only result in an unproductive and uncooperative working relationship.

[67] Because of my findings in this regard I now turn to consider compensation.

392 Remedy — compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise

(b) the length of the person’s service with the employer

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

(g) any other matter that the FWC considers relevant.

[68] In respect of the above matters that I must take into account I find as follows:

The effect of the order on the viability of the employer’s enterprise

[69] There is no evidence that any order I might make for compensation would in some manner affect the employer’s viability.

The length of the person’s service with the employer

[70] The period of employment with the employer was for a particularly short period (of a little over six months) and this does not have a strong influence or effect on my disposition as to whether or not to make an order and the terms thereof.

The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[71] On a reasonable assessment of the evidence, Ms Templeton would not have remained an employee for other than a particularly short period. Ms Templeton was employed for only a short time and that provides no sure foundation for presuming her employment would have continued well into the future. Ms Templeton had also evinced performance issues – as discussed above - and a trust issue had emerged in her employer’s mind as well towards the end of her period of employment.

[72] In the circumstances, the remuneration that Ms Templeton would have received, or would have been likely to receive, if she had not been dismissed is the equivalent of 8 weeks of her usual wages.

[73] On review, I consider this to be an amount that is also appropriate in all the circumstances of the case (see the Full Bench decision in Smith v Moore Paragon (2004) 130 IR 446 PN 32 - an authority recently upheld by the Full Bench decision in [2015] FWCFB 4171).

The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[74] Ms Templeton in my view had made a reasonable effort to mitigate her losses given the constraints in respect of her availability.

The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation.

[75] Ms Templeton earned no remuneration in the first five weeks following her dismissal. At the end of the fifth week it appears Ms Templeton obtained employment which resulted in her earning $200.00 (rounded) less than her current position each week. These earnings must be taken into account.

The amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation

[76] This is not a matter that requires any consideration as it is irrelevant to these proceedings.

Any other matter that the FWC considers relevant

[77] I make no deduction for contingencies as I do not see them as being relevant in this matter.

[78] Section 392(3) of the Act provides as follows:

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

[79] Ms Templeton’s conduct during her private golfing activities on the weekend prior to her dismissal was a factor that affected Mr Clancy’s decision making – as his evidence made clear. I made a finding in this regard earlier.

[80] In my view, the compensation order that I make should be reduced by two weeks as a result of Ms Templeton’s misconduct, which contributed to her employer’s decision to dismiss her.

[81] Section 392(4) of the Act provides as follows:

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

[82] My order for compensation makes no allowance for the above proscribed matters or considerations.

[83] Section 392(5) of the Act provides as follows:

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

[84] Section 392(6) of the Act provides as follows:

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

[85] The order that I propose to make does not need to take into account the statutory cap.

[86] Section 393 of the Act provides as follows:

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[87] The employer has made no application in the course of these proceedings to pay any amount I may order to be paid as compensation in instalments. The employer may make such an application within 72 hours of this decision being published.

CONCLUSION IN RELATION TO REMEDY

[88] I order that the employer pay to Ms Templeton an amount which is the equivalent of five weeks of her usual pay subject to taxation as might ordinarily apply. A further payment of one week’s pay at the reduced rate of $200.00 (as rounded) (subject to taxation) must also be paid.

[89] The reduced amount for the final week reflects the negative differential between Ms Templeton’s remuneration with the employer and current remuneration with her new employer. The structure of the compensation order and my calculations reflect the absence of a detailed statement of earnings from Ms Templeton. If the parties believe there is any uncertainty in relation to the order they may provide (within seven calendar days following the publication) more detailed information to me to redraft its terms.

[90] The employer must pay the above amount to Ms Templeton’s usual bank account within seven calendar days of the date of publication of this decision, subject to any application under s.393 of the Act.

[91] An order to the above effect will issue along with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr M Heffernan, representative for the Applicant

Mr A Clancy of the Respondent

Hearing details:

By telephone

2015

18 August

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