Kelly Norgate v Melco Engineering Pty Ltd
[2024] FWC 1346
•22 MAY 2024
| [2024] FWC 1346 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Kelly Norgate
v
Melco Engineering Pty Ltd
(U2023/12984)
| COMMISSIONER DURHAM | BRISBANE, 22 MAY 2024 |
Application for an unfair dismissal remedy – no material filed by Respondent – Respondent non-compliant and unresponsive – matter determined based on material provided – Reinstatement not appropriate – Compensation awarded
On 22 December 2023, Ms Kelly Norgate (Ms Norgate/the Applicant) made an application to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the FW Act). Ms Norgate alleges that she was unfairly dismissed from her employment with Melco Engineering Pty Ltd (Melco/the Respondent) on 15 December 2023. Ms Norgate seeks financial compensation to the amount of 8 weeks,[1] and a written apology[2] as she did not believe reinstatement would be appropriate due to lack of trust.[3]
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW 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 FW 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.
Whether person protected from unfair dismissal (minimum employment period & high-income threshold)
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 Ms Norgate was an employee, who commenced their employment with the Respondent on 23 January 2023 and was dismissed on 15 December 2023, a period in excess of 6 months.
It was not in dispute and I find that Ms Norgate 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.
It was not in dispute and I find that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings (being $122,655 including superannuation), was less than the high income threshold, which, for a dismissal taking effect on or after 30 June 2023, is $167,500.
I am therefore satisfied that, at the time of dismissal, Ms Norgate was a person protected from unfair dismissal.
When has a person been unfairly dismissed?
Section 385 of the FW 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.
A person has been unfairly dismissed if the Commission is satisfied that the person has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code and the dismissal was not a case of genuine redundancy.
There is no dispute between the parties that the Small Business Fair Dismissal Code did not apply, that this was not a case involving genuine redundancy and that the application was made within the period required.
Background
On 14 February 2024, I issued a notice of listing to conduct a case management conference (the conference) on 26 February 2024.
On 23 February 2024, my Chambers emailed the parties to confirm their attendance. Ms Norgate confirmed her attendance by way of reply email that same day, however no response was received from the Respondent.
On 26 February 2024, my Chambers emailed the Respondent seeking confirmation of their attendances for the conference, however no response was received. Prior to commencement of the conference at 2:00pm, my associate called the Respondent’s business number and was advised that the Respondent’s contact person, Mr Mark Clifford was not currently in but may be in the office in the next hour. It was suggested to my associate that he write an email to Mr Clifford, to which my associate confirmed that multiple correspondence had been sent to Mr Clifford. My associate confirmed Mr Clifford’s best contact number in order to dial him into the conference, this contact number was the same as the one on record.
On or around 2:00pm on the same day, my associate attempted to dial in Mr Clifford multiple times but was unable to do so, subsequently leaving voice messages advising that he was being contacted for the purposes of the conference. My associate, then called the Respondent’s business number to confirm Mr Clifford’s best email address and Melco’s general email address, both of which were the same used in previous correspondence.
I issued directions on 26 February 2024, for the parties to file their material and a Hearing was scheduled for 16 April 2024.
Ms Norgate complied with my directions, and filed her material on 11 March 2024. However, the Respondent did not comply and was sent an email from my Chambers seeking a response as to their non-compliance. The email sent to the Respondent on 26 March 2024 is as follows:
“Dear Mr Mark Clifford,
I refer to the above matter.
As per the directions issued by Commissioner Durham on 26 February 2024, material for the Respondent (Melco Engineering Pty Ltd) was due to be filed with the Commission, and served on the Applicant, by 25 March 2024.
The Commission has not received any material from the Respondent, nor has it received a request for an extension.
Please advise by close of business today, why material for the Respondent has not been filed in accordance with the Commissioner’s directions.
Failure to comply with these directions will result in the Commissioner making a decision based only on the material that has been provided. Should you choose not to respond, this may result in the matter being determined in your absence without further notice and a decision adverse to your interest may also be made.”
On 2 April 2024, as the Respondent continued to be unresponsive to the direction to file material and the email seeking a reason as to why there was non-compliance, my Chambers issued correspondence noting that I intended to vacate the hearing and determine the matter on the papers. Neither party objected to this. As such, on 5 April 2024, my Chambers confirmed that the hearing was vacated and the matter would be determined on the papers, and on the material currently before me.
Evidence of the parties
Ms Norgate filed submissions, including a written statement of evidence.
The Respondent did not file submissions despite being directed to.
The position advanced by the Respondent
The only material provided by the Respondent was their Form F3 in response to the application, however I do note apart from basic information such as Ms Norgate’s employment date, dismissal date, her salary and the amount of employees employed at the time of the dismissal, there is no response to Ms Norgate’s contentions nor is there a reason provided for her dismissal.
Section 600 of the FW Act allows the Commission to determine a matter before it in the absence of a person who has been required to attend before it. Section 577 of the FW Act also requires the Commission to perform its functions and exercise its powers in a manner which is fair, just and quick.[4] Notwithstanding the absence of engagement by Melco, it remains necessary for Ms Norgate to establish any jurisdictional and merit considerations arising from the FW Act.[5]
The position advanced by the Applicant
Ms Norgate’s evidence and submissions can be summarised as follows:
· On 23 January 2023, Ms Norgate commenced employment with the Respondent as a stores/logistics coordinator.[6] Ms Norgate was later offered, and accepted the role of HR/HSE manager with the Respondent.[7]
· On 15 December 2023, Mr Paul Hyland, Chief Operations Officer of the Respondent, called Ms Norgate and Mr David Phillips, Accountant, into his office.[8]
· Mr Hyland asked Ms Norgate and Mr Phillips to terminate the employment of a Trainee Administrator, Ms Ashley Saron. It is Ms Norgate’s evidence that Mr Hyland wanted this done immediately and on “any grounds necessary”.[9]
· Ms Norgate further contends that Mr Hyland indicated that he did not care about any ramifications i.e. grounds for an unfair dismissal.[10]
· On that same day, Mr Bimal Basil, an Estimator for the Respondent, came into Ms Norgate’s office and advised her that Mr Hyland had just ended his employment with no notice.[11] Mr Basil asked Ms Norgate some questions and she provided him with whatever information she could, but indicated that she would have to speak to Mr Hyland for any further information as she had no knowledge of the termination.[12]
· Later on that same day, Mr Hyland entered Ms Norgate’s office and advised her employment was terminated, effective immediately.[13] Ms Norgate submitted that Mr Hyland said she could call him at a later date to discuss the reasons.[14] Ms Norgate collected her belongings and returned the Respondent’s property while Mr Hyland supervised.
· On 18 December 2023, a termination letter was provided to the Applicant. It did not contain reasons for the termination, only confirmed the end of employment date and the entitlements to be paid out. It was signed by Mr Hyland.[15]
· Ms Norgate maintains that the decision to terminate her employment lacked transparency.[16] She was not given any reason for her dismissal nor was she afforded any opportunity to address any concerns that may have contributed to the decision to terminate her employment.[17]
· During her employment, Ms Norgate had never been advised of any performance issues or concerns.[18]
Observations on the Evidence
The determination of this matter is made difficult by the lack of engagement by the Respondent. Given the Respondent did not file any material nor did the Form F3 provide any information to contest Mr Norgate’s application, I have decided to make a Jones v Dunkel inference that the Respondent has no evidence to contradict Ms Norgate’s submission and proceed on that basis. The Oxford Australian Law Dictionary defines a Jones v Dunkel inference to mean:[19]
“A Jones v Dunkel inference is an inference drawn about a deficiency of evidence led by one side in a case in court, named after Jones v Dunkel & Anor (1959) 101 CLR 298. The Rule in Jones v Dunkel is ‘a principle of the law of evidence whereby a particular form of reasoning is authorised’: Manly Council v Byrne & Anor [2004] NSWCA 123; the reasoning is that if a prima facie case has been established..., and the other party offers no explanation or contradiction of facts from which an inference may be drawn, then the fact that the party might have proved the contrary had the party chosen to give evidence may properly be taken into account as a circumstance in favour of drawing the inference; it increases the weight of the proof brought by one side and reduces the weight of the incomplete evidence brought by the other...”
Regarding the unchallenged evidence of Ms Norgate, I note that in the Full Bench decision of INPEX Australia Pty Ltd v The Australian Workers’ Union, it was stated that: [20]
“[29] The Commission is not a court. It is not bound by the rules of evidence. It is required to perform its functions and exercise its powers in a manner that is quick, informal and avoids unnecessary technicalities. But when the Commission makes a finding of fact, it must proceed by reference to rationally probative material. That material may include, inter alia, evidence or, in an appropriate case, submissions. For example, it may be appropriate for a finding of fact to be made on the basis of an unchallenged submission made by one party, particularly when the other party is legally represented.” (emphasis added)
Further, a Full Court of the Federal Court of Australia stated in Ashby v Slipper that:[21]
“The second aspect, critical to this appeal, relates to the weight or cogency of the evidence: that is, as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Limited v Demir [1975] HCA 27; (1975) 132 CLR 362 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection.” (emphasis added)
As the Respondent has not made any attempt to file material nor address in their Form F3, Ms Norgate’s contentions, I accept Ms Norgate’s unchallenged evidence.
Consideration
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW 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.[22]
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”[23] and should not be “capricious, fanciful, spiteful or prejudiced.”[24] 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.[25]
Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.[26] “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”[27]
Several Members of the Commission have considered matters where the Respondent has provided no reasons to the Applicant for their dismissal. Relevant to this matter I note the following:
· In Wood v Tricon Security Pty. Limited, [28] Deputy President Roberts found that where no reason was given to the Applicant for the dismissal, including where there was a background context of unpaid wages and superannuation and the Respondent at a later date argued a downturn in business, there was no reason given and therefore there could be no valid reason for the dismissal.
· In Simon v NGS Group Pty Ltd ATF NGS Discretionary Unit Trust,[29] Commissioner Wilson found that as there was no specific reason advanced by the Respondent for the dismissal, regard must be had to the surrounding circumstances of the dismissal. In that case the Respondent argued that there had not been a dismissal at all, and advanced no alternative argument in support of the dismissal if that argument did not succeed. Commissioner Wilson found: “This is not an instance in which a small business puts forward that it has done the best it possibly could dealing with a very difficult situation and that factors within that situation meant that nonetheless a valid reason for dismissal could be found.” He found that there had been no reason, let alone a valid reason for the dismissal.
· In Rees v NCC Concrete Services,[30] Deputy President Sams found that as the evidence of the Applicant was uncontradicted by the Respondent, it stood unchallenged, and he accepted that the Applicant was never told any reasons for the dismissal. As in the other cases, he found that as there was no reason given, it followed that no valid reason could be upheld.
Having accepted Ms Norgate’s uncontested evidence regarding her dismissal, I find that she was not provided any reason for her dismissal. In line with the above decisions and the lack of evidence put forward by the Respondent to distinguish this case from those set out above, I find that there was no valid reason for the dismissal.
Was the Applicant notified of the valid reason?
As I am not satisfied that there was a valid reason for the dismissal, this factor is not relevant to the present circumstances.[31]
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
As I have not found there was a valid reason for Ms Norgate’s dismissal that was related to her capacity or conduct, this factor is not a relevant consideration in this case.[32]
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
As the decision to terminate Ms Norgate’s employment was simply announced without notice, there was no opportunity for her to request a support person to assist in any discussions. Whilst this factor is not directly relevant due to no discussions being held, I do find Ms Norgate not being afforded such an opportunity weighs in favour of a finding that the dismissal was harsh, unjust and unreasonable.
Was the Applicant warned about unsatisfactory performance before the dismissal?
Having accepted Ms Norgate’s uncontested evidence, I find that her performance was not a factor in her dismissal. Consequently, consideration of this factor is not required.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.
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?
Neither party made submissions regarding this point.
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.[33] The majority of factors considered weigh in favour of a finding that Ms Norgate’s dismissal was harsh, unjust and unreasonable given the overlap of concepts.[34]
Conclusion on Merits
I have made findings in relation to each matter specified in section 387 as relevant. I am satisfied that the Applicant was unfairly dismissed, and that the dismissal was harsh, unjust and unreasonable.
I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
Remedy
Section 390 of the FW Act provides that the Commission may order a 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
I am satisfied that Ms Campbell is a person protected from unfair dismissal, that she has been unfairly dismissed and that she made an application under s 394.
(b) the FWC considers an order for payment of compensation is appropriate in
all the circumstances of the case.
Is reinstatement appropriate?
Noting Melco provided no views regarding reinstatement, Ms Norgate submits that any efforts to establish a connection with the Respondent is futile and due to her lack of trust, the prospects of reinstatement are inappropriate.
Considering the above, I am of the view that reinstatement would not be appropriate in this case. As I have found that reinstatement is not appropriate, I shall now consider compensation.
Compensation
In her submissions, Ms Norgate seeks financial compensation which consists of 8 weeks to approximately cover the time she has been unemployed, noting she secured new employment on 8 February 2024, which according to her calculations equates to $17,076.89.[35] I have calculated the amount of weeks between the date of the dismissal and the date of new employment to be 7 weeks. The Respondent has provided no material or views regarding the remedy sought. Specifically, with respect to my directions issued on 26 February 2024, the Respondent was directed as follows:
“2. The Respondent is required to file the following material in the Fair Work Commission, and serve a copy on the Applicant, by no later than no later than 4:00pm on Monday, 25 March 2024:
a. Submissions in response to the application including the remedy sought; and
b. Witness Statements for each of the witnesses the Respondent intends to call at the hearing in response to the application.” (emphasis added)
Is an order for compensation appropriate in all the circumstances?
As I have found that reinstatement is inappropriate, I must now consider whether an order for compensation is appropriate under s 390(3)(b). The Full Bench has noted that the question of whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one, and whether an applicant has suffered financial loss may be a relevant consideration.[36]
I am satisfied that Ms Norgate has suffered a financial loss, and having considered all of the circumstances of this case, it is appropriate to order compensation. My reasons and assessment of the amount are set out below.
The long-established approach to assessing compensation in unfair dismissal matters was set out in Sprigg v Paul Licensed Festival Supermarket (Sprigg),[37] which the Full Bench of this Commission has since applied under the current Act.[38]
I summarise the Sprigg formula as follows:
1. Estimate the remuneration that employee would have received if the employer had
not terminated the employment;
2. Deduct monies earned since termination;
3. Discount the remaining amount for contingencies;
4. Calculate the impact of taxation.
While Sprigg sets out the method, I must nevertheless take account of all the circumstances of the case and of the specific criteria listed in s 392.[39]
The overall consideration is that the level of compensation must nevertheless be appropriate (that is, neither clearly excessive nor clearly inadequate) having regard to all the
circumstances of the case.[40]
Section 392(2) provides:
(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; and
(b) the length of the person's service with the employer; and
(c) the remuneration that the person would have received, or would have been
likely to receive, if the person had not been dismissed; and(d) the efforts of the person (if any) to mitigate the loss suffered by the person
because of the dismissal; and(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; and(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; and(g) any other matter that the FWC considers relevant.
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.
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.
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.
(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.
Section 392(2)(a) – Viability
Melco has not filed material regarding this factor, further there is no evidence that Melco are in liquidation.
I am not persuaded that my consideration of this factor means that I should not make an order for compensation.
Section 392(2)(b) – Length of service
The information provided in Ms Norgate’s Form F2 and Melco’s Form F3 correlate with respect to Ms Norgate’s start date being 23 January 2023, as well as the dismissal date being 15 December 2023. I am therefore satisfied on the material provided that Ms Norgate’s employment with Melco commenced on 23 January 2023 and that her length of service is therefore 10 months, 3 weeks and 1 day. This is a relatively short period of time, however, I consider that Ms Norgate’s length of service does not support reducing or increasing the amount of compensation ordered.
Section 392(2)(c) – Remuneration the person would have received
As stated by a majority of the Full Court of the Federal Court in the He v Lewin[41] (as quoted in Zeng v Conrock Australia Pty Limited)
“[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive... the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”
Ms Norgate states that she had a good relationship with her team and was welcomed by Mr Hyland to return to the office at a later date to say goodbye to the workforce. As such there is no indication that Ms Norgate’s employment would have come to an end for any other reason.
In the absence of any argument to the contrary, and given there were no performance issues that Ms Norgate was aware of, I can see no reason that she would not have remained in employment with Melco indefinity.
Section 392(2)(d) – Efforts to mitigate loss
I accept Ms Norgate’s evidence that she had made genuine attempts to mitigate her loss by applying for several contract administration roles, HR roles, Service Coordinator roles, recruitment roles and administrative roles.[42] Further, she has participated in interviews for some of the roles she has applied for. [43]
Section 392(2)(e) & (f) – Remuneration and income earned
Melco dismissed Ms Norgate effective immediately and paid her one week in lieu of notice along with her unused annual leave.[44] Ms Norgate confirms that she secured new employment on 8 February 2024 as a HR Coordinator, and has been working full-time hours since that time.[45]
Section 392(2)(g) – Any other matter
Ms Norgate states that in addition to the loss of income, she suffered a further loss with respect to childcare fees that she had no alternative but to pay. Specifically, she states that, due to the time of year, her child was booked into vacation care and that the policies of the centre required her to provide 3 weeks’ notice of any cancellation.[46]
She further contends that she was unable to cancel her child’s care, because once cancelled, she had no way to ensure she could secure another place. This, she says, would have significantly impacted her ability to secure, and commence alternative employment.[47]
Section 392(3) – Contribution to dismissal by misconduct not relevant
The Respondent did not make any submissions regarding the extent of such consideration. As I have not found any misconduct on Ms Norgate’s behalf, let alone a reason as to why she was dismissed, I do not intend to reduce any awarded compensation in this regard.
Section 392(4) – Shock, distress etc disregarded
Ms Norgate states she experienced anxiety and stress whilst trying to find a new role over the Christmas/New Years, as most businesses were closed, or key employees of businesses were on annual leave. Whilst I acknowledge the stress Ms Norgate would have experienced in this period of time, I have not ordered an amount of compensation for shock and distress.
Taxation
Consistent with prior decisions,[48] I propose to order payment of a gross (that is, before
tax) amount of compensation, to be taxed according to law.
Section 392(5) Compensation Cap
Ms Norgate submits she was employed full time (working from 8:00am to 4:06pm) and earned a weekly pay of $2,134.61 per week, or $56.17 per hour.[49] I accept this figure.
Under s 392(5) the compensation cap is the lesser of 26 weeks of Ms Norgate’s pay
or half the amount of the high income threshold.
$83,750 is half the amount of the high income threshold that applied immediately before Ms Norgate’s dismissal, which was $167,500.
$55,499.86 is 26 weeks of Ms Norgate’s weekly pay.
The compensation cap that applies to Ms Norgate is therefore $55,499.86. Consequently, I am unable to award Ms Norgate any compensation in excess if this amount.
Conclusion on Remedy
Having weighed each of the considerations under section 392, and noting Ms Norgate’s efforts to mitigate her loss by securing alternative employment, I find it appropriate to grant Ms Norgate compensation that is equivalent to the income that she would have received had she not been unfairly dismissed by the Respondent, being the time between her termination and the date upon which she commenced alternative employment. Having accepted Ms Norgate’s submissions in this regard, I take that period of time to be 7 weeks.
Noting Ms Norgate received one week’s pay in lieu of notice, I also consider it appropriate that the period of compensation be reduced accordingly, to 6 weeks, at her weekly rate of $2,134.61.
I intend to issue an order that the Respondent, Melco, pay to the Applicant, Ms Kelly Norgate, the sum of $12,807.66 gross, taxed in accordance with law. An order to that effect will be issued separately and concurrently with this decision.
COMMISSIONER
[1] Applicant Submissions at 7c.
[2] Ibid at 7a.
[3] Ibid at 7b.
[4] ZA v GDI Pty Ltd[2021] FWC 3193 at [26].
[5] Lee Vickery v Encompass Books[2013] FWC 6424 at [9].
[6] Applicant Witness Statement.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Form F2.
[17] Ibid.
[18] Applicant Submissions at 6d.
[19] Jennifer Roberts v Drewmaster Pty. Ltd.[2024] FWC 332 at [136].
[20] [2021] FWCFB 1038.
[21] [2014] FCAFC 15.
[22] 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].
[23] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[24] Ibid.
[25] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[26] Edwards v Justice Giudice [1999] FCA 1836, [7].
[27] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
[28] [2023] FWC 1901 at [27]-[32].
[29] [2019] FWC 3442 at [79]-[85].
[30] [2018] FWC 4665 at [18], [20].
[31] 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].
[32] 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].
[33] 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].
[34] Byrne v Australian Airlines Ltd [1995] HCA 24 (11 October 1995) at para. 128 (McHugh and Gummow JJ), [(1995) 185 CLR 410 at p. 465].
[35] Applicant Submissions at 7a and 7c.
[36] Vennix v Mayfield Childcare Limited[2020] FWCFB 550 at [20].
[37] (1988) 88 IR 21.
[38] ERGT Australia Pty Ltd v Govender[2021] FWCFB 4508 at [35].
[39] Elefantis v The Trustee for Timber Ridge Unit Trust[2022] FWCFB 43 at [67].
[40] McCulloch v Clavary Health Care Adelaide[2015] FWCFB 873 at [29].
[41] [2004] FCAFC 161 at [58].
[42] Applicant Submissions at 7d.
[43] Ibid.
[44] Termination letter.
[45] Applicant Witness Statement.
[46] Ibid.
[47] Ibid.
[48] Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge[2013] FWCFB 431 at [55];
Vennix v Mayfield Childcare Limited[2020] FWCFB 550 at [32].
[49] Applicant Submissions at 2a & Applicant Witness Statement.
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