Khanya Sibeko v Eleano Staff Pty Ltd

[2021] FWC 1071

[2021] FWC 1071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Khanya Sibeko
v
Eleano Staff Pty Ltd
(U2020/11704)

DEPUTY PRESIDENT MANSINI MELBOURNE, 26 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Ms Khanya Sibeko for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth)(Act), in relation to her employment with Eleano Staff Pty Ltd as a part time pharmacy assistant at Pharmacy 4 Less Melbourne Central.

[2] I have determined that the Applicant was unfairly dismissed from her employment and to order a remedy of compensation. The reasons for this decision follow.

Procedural context

[3] Notwithstanding the Commission’s efforts to communicate with the Respondent and provide reasonable procedural assistance prior to the hearing of this matter, the Respondent failed to comply with various Commission directions and ultimately did not attend the hearing or file any materials in support of its response to the application. A summary of the Respondent’s limited instances of participation and many instances of non-compliance is at Annexure A.

[4] At the hearing, I made enquiries as to whether the Applicant was aware of any reason for the Respondent’s non-participation and non-compliance. The Applicant’s evidence was that, to her knowledge, Mr O’Neale had been unwell but she maintained that he remained active in the business – he was the person who had dismissed her from her employment. The Applicant’s representative submitted that, even if Mr O’Neale was not able to deal with the matter himself, he could have delegated the matter to a manager, an industry association or a private lawyer but had chosen not to do so and the Applicant should not be prejudiced on account of this.

[5] As is apparent from the context at Annexure A, the Respondent was able to but chose not to participate in the initial conciliation conference. I am satisfied that the Respondent was on notice that any failure to comply with the Commission’s directions of 6 October 2020 or to attend the hearing on 18 November 2020 would result in the Commission proceeding to determine the matter on the materials before it and without hearing further from them.

[6] After the hearing concluded, chambers received contact from an industry association seeking to access a copy of the transcript of the hearing (but written confirmation of authority to represent the Respondent, was never provided in order to access the record, as requested). There has been no attempt made to file any response by or on behalf of the Respondent, or to seek to be heard in this matter even after the hearing had concluded. Accordingly, I have determined this matter on the basis of the application, the Applicant’s filed materials and evidence given to the Commission at the hearing.

The Applicant’s case

[7] A short summary of the Applicant’s evidence follows. 1

[8] The Applicant is 22 years old and commenced employment with the Respondent on a casual basis from around 27 March 2019.

[9] From February 2020, the Applicant was converted to part-time employment. She worked between 16.5 and 22 hours, and earned around $405, each week.

[10] In April 2020, the Respondent reduced its opening hours due to the COVID-19 pandemic. The Applicant’s hours were reduced, by agreement, to between 11 and 16 hours per week. She earned between $310 and $360 per week after the reduction in hours.

[11] From April to August 2020, the Applicant was paid for the reduced hours she worked. At that time, she also received Youth Allowance from Centrelink.

[12] Around June or July 2020, the Applicant came across an email between Ms Dimity Hopkinson (Pharmacy Manager of the Respondent) and one of Mr O’Neale’s accountants. The email contained information about the Respondent receiving Job Keeper payments. The Applicant understood this to mean that the Respondent was receiving Job Keeper payments but withholding it from the employees.

[13] On 10 August 2020, the Applicant attended a meeting with Ms Claire Dransfield (the Applicant’s manager) and other employees of the Respondent. The purpose of this meeting was to ask Ms Dransfield to convince Mr O’Neale to start passing on the JobKeeper payments to the employees. The Applicant’s evidence was that, in this meeting, Ms Dransfield confirmed that: the JobKeeper payments were being withheld; Mr O’Neale did not want to pay the employees; and the outcome of the meeting was that Ms Dransfield would go back to Mr O’Neale and ask him to pay the employees.

[14] On 14 August 2020, the Applicant received Job Keeper payments which were backdated for the period from 3 April 2020 until 23 July 2020. The Applicant incurred a retrospective debt with Centrelink due to the back payment and, for a period up until two weeks prior to the hearing, was unable to access services from Centrelink.

[15] On 19 August 2020, Ms Dransfield sent the Applicant a text message which advised the Applicant owed Mr O’Neale $879.00 because he had overpaid her JobKeeper payment during a week that she had not worked, and he also forgot to deduct the Medicare levy tax from the Applicant’s pay. Mr O’Neale called the Applicant on the same day, asking for the $879.00 to be deposited into his bank account and the Applicant should get his payment details from Ms Dransfield. The Applicant told the Commission that this telephone call with Mr O’Neale was not pleasant and she was very intimidated by the conversation. The Applicant did not tell Mr O’Neale that she would pay him and told him that she would speak to Ms Dransfield. She told the Commission that she did so as she felt Ms Dransfield was much more willing to have a conversation about these sorts of matters.

[16] Also on 19 August 2020, the Applicant contacted the Australian Tax Office (ATO) and was told that she is entitled to Job Keeper payments whether she worked or not, and that it is not her employer’s role to deduct the Medicare levy tax from her pay.

[17] On 20 August 2020, the Applicant sent a text message to Ms Dransfield seeking a written explanation of what she owed the Respondent. In response, the Applicant received a spreadsheet via text showing the amount it claimed she owed.

[18] On 23 August 2020, Mr O’Neale called the pharmacy and asked to speak to the Applicant and another employee who owed him money. During this phone call, Mr O’Neale restated to the Applicant that she owed him money and asked her to repay him. The Applicant explained to Mr O’Neale that she had spoken to the ATO and did not believe she owed him any money, to which he responded words to the effect that the ATO was lying, she needed to pay him and if she did not pay him then she should not come back to work. Again, the Applicant told Mr O’Neale that she would not pay him, and his response was “don’t come in again”. The Applicant asked Mr O’Neale for a termination letter and he responded advising that he would not write one for her. The Applicant finished her shift immediately after this phone call ended.

[19] Following this, Ms Hopkinson, the manager working with the Applicant that day, told the Applicant that she had spoken to Mr O’Neale, and he wanted to know if the Applicant had understood their conversation. The Applicant told Ms Hopkinson that she understood and needed a termination letter. The Applicant was insistent on being given a written termination of employment because she was terminated over the phone.

[20] On 24 August 2020, the Applicant sent a text message to Mr O’Neale and an email to the pharmacy, addressing her withheld pay (she was not paid for shifts worked from 8 to 23 August 2020) and asking for an explanation about her dismissal. She did not receive any response. On the same day, the Applicant texted Ms Dransfield explaining what happened the day prior and asked for a meeting with both Ms Dransfield and Mr O’Neale before the Applicant’s shift the next day. This meeting did not occur, and the Applicant did not attend her designated shift on 25 August 2020.

[21] On 28 August 2020, the Applicant texted Ms Hopkinson for confirmation that her employment had been terminated and asked for a termination letter. Ms Hopkinson responded that “obviously a verbal termination had been given by Warren (Mr O’Neale)” and that she would get Ms Dransfield to organise a written termination letter. Also on 28 August 2020, the Applicant sent Ms Dransfield a text message, asking for confirmation that her employment had been terminated to which Ms Dransfield responded “Yes, Warren has said to me that you are terminated and you’re not on the roster for the weekend”.

[22] On 11 September 2020, the Applicant was contacted by the Fair Work Ombudsman (FWO) in relation to the withheld pay. The Applicant asked the FWO if it could get her a termination letter from Mr O’Neale.

[23] On 15 September 2020, the Applicant received a termination letter attached to an email from Mr O’Neale. The letter stated:

“Dear Khanya,

This is a letter to advise you of your termination of employment as of the 23th (sic.) of August 2020.

Due to the current disastrous economic state of affairs it is with great sadness that we no longer have a position available to you.

We wish you all the very best in your future endeavours.

Regards,

Warren O’Neale

Melbourne Central Pharmacy.” 2

[24] The Applicant gave evidence that she was surprised at the reason given in the termination letter, as the Respondent had not indicated that redundancy was a possibility prior to her 23 August 2020 termination. She had understood that the reason for her termination was her disagreement with Mr O’Neale about repayment of the alleged overpayment.

[25] The Applicant gave evidence that, at the time of the hearing, she had not been paid her 1 week in lieu of notice, had not been paid her accrued annual leave, superannuation contribution, and had wages withheld.

[26] Following her termination, the Applicant temporarily moved to Mildura to stay with her mother, as she could not afford to live in Melbourne whilst unemployed. This is because the Applicant was studying full-time and was not receiving Centrelink at the time (due to being cut off) and was having to live off her savings.

[27] At the time of the hearing, the Applicant had returned to Melbourne a few days prior and after returning to Melbourne had commenced applying for jobs. The Applicant’s evidence was that she had only made “a couple of applications” and she had not been called for any interviews. The jobs she had applied for were as a pharmacy assistant as that is her experience.

[28] Since her employment came to an end, the Applicant has only received income in the form of Youth Allowance from Centrelink. Due to the issues she faced with Centrelink, those payments commenced again two weeks prior to the hearing and as such, the Applicant did not receive any income for 10 weeks.

When can the Commission order a remedy for unfair dismissal?

[29] Section 390 of the 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.

[30] 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?

[31] Section 382 of the 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.

When has a person been unfairly dismissed?

[32] Section 385 of the 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.

PART A: INITIAL MATTERS TO BE CONSIDERED

Has the Applicant been dismissed?

[33] A threshold issue to determine is whether the Applicant has been dismissed from their employment.

[34] Section 386(1) of the Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[35] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[36] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed, though it may be communicated orally. 3 By reason of the discussion between the Applicant and Mr O’Neale, I find that the Applicant’s employment with the Respondent was terminated at the initiative of the Respondent on 23 August 2020 with immediate effect. The evidence that the Applicant subsequently sought to confirm her termination, in writing, does not alter my view that she clearly had been (and understood that she had been) dismissed from her employment. The Respondent’s termination letter of 15 September 2020 further supports this conclusion and satisfactorily resolves that there is no question that the Applicant resigned her employment.

[37] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the Act.

Initial matters

[38] Under s.396 of the Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

[39] Section 394(2) of the Act requires an application to be made within 21 days after the dismissal took effect. I have found that the Applicant was dismissed from her employment on and effective 23 August 2020. The application was made on 28 August 2020. I am therefore satisfied that the application was made within the period required by s.394(2) of the Act.

[40] For completeness - even if the dismissal were not taken to be effective until a later date (as late as 15 September 2020, when the termination letter was eventually provided to the Applicant) meaning the application was premature in that it was not filed after the dismissal took effect, I am satisfied that this would be an appropriate case to exercise the discretion at s.586(b) in favour of the Applicant and waive the irregularity in this case. The Applicant acted to pursue her claim without delay and there has been no suggestion that the employer is prejudiced by the early filing of the application, in contrast to the detriment that the Applicant would suffer if she was not able to pursue her claim due to having filed early.

Was the Applicant protected from unfair dismissal at the time of dismissal?

[41] I have set out above when a person is protected from unfair dismissal.

[42] On the evidence before the Commission, I find that the Applicant was an employee, who commenced their employment with the Respondent on or around 27 March 2019 and was dismissed on 23 August 2020. She was converted to part time employment for a period in excess of six months, being the period immediately prior to her dismissal. There is no suggestion that the Respondent is a small business employer, having fewer than 15 employees at the relevant time, nor was I able to ascertain any basis for such conclusion in my inquiries of the Applicant. I find that, at the time of dismissal, the Applicant was covered by an award, being the Pharmacy Industry Award 2020.

[43] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[44] Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[45] As mentioned above, I have no evidence to the contrary and find that the Respondent was not a small business employer within the meaning of s.23 of the Act at the relevant time, meaning it employed in excess of 14 employees (including casual employees employed on a regular and systematic basis).

[46] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the Act.

Was the dismissal a case of genuine redundancy?

[47] Under s.389 of the Act, a person’s dismissal was a case of genuine redundancy if:

(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[48] I have had regard to the content of the termination letter of 15 September 2020, which said the Applicant was terminated due to the Respondent no longer having a position available and eluded to circumstances that may amount to a genuine redundancy. However the letter did not say that the Applicant’s role was redundant, nor does it appear that she was paid any redundancy entitlement. The balance of the evidence before the Commission points to the conclusion that the Applicant was terminated due to her disagreement with Mr O’Neale about the Respondent’s claim for repayment, rather than because the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

[49] I am therefore satisfied that the dismissal was not a case of genuine redundancy.

[50] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

PART B: WAS THE DISMISSAL HARSH, UNJUST OR UNREASONABLE?

[51] 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.

[52] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 4

[53] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?

[54] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 5 and should not be “capricious, fanciful, spiteful or prejudiced.”6 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.7

[55] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.⁸ “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.” 9

[56] On the evidence before the Commission, I have concluded that the Applicant was terminated at the initiative of the Respondent on 23 August 2020 with immediate effect. The Applicant claimed that the reason for her dismissal was because she did not agree to repay an amount of money which the Respondent considered it had overpaid to her. The Applicant gave evidence that her refusal to repay the money was on account of advice she had received to the effect she did not owe any money. Prior to the final dismissal discussion of 23 August 2020, she had requested that the Respondent explain the reasons why it said that she owed it money, presumably so that she could take further advice about the matter. The Respondent did not oblige this request and the Applicant was told in no uncertain terms not to come back to work if she did not agree to repay the money alleged to have been owed.

[57] On the best evidence before the Commission which, at the Respondent’s election, is unanswered, and in all the circumstances, I find that there was no valid reason for the dismissal related to the Applicant’s capacity or conduct.

Was the Applicant notified of the valid reason?

[58] Because I am not satisfied that there was a valid reason for the dismissal related to capacity or conduct, this factor is not relevant to the present circumstances. 10

Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?

[59] As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances. 11

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

[60] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[61] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”12

[62] The Applicant did not request to have a support person present at the discussion of 23 August 2020 in which she was dismissed or in the prior discussions related to the alleged overpayment. It follows that the Respondent did not unreasonably refuse such a request by the Applicant.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[63] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[64] No submission was made 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?

[65] It was not contended that the Respondent had any dedicated human resource management specialists or expertise. The Applicant submitted that there are several businesses registered in the name of Mr O’Neale, who operates several pharmacies in Victoria, and he ought to have got some support internally or externally to ensure he was following a proper process.

[66] Accepting that the Respondent may have an absence of dedicated human resource management specialists or expertise in its enterprise, this does not excuse the poor procedure (or complete lack thereof) followed by the Respondent in effecting the Applicant’s dismissal.

What other matters are relevant?

[67] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[68] The impact of the dismissal on the Applicant’s personal and financial circumstances is a relevant consideration in this matter. She was forced to leave her home in Melbourne and live with her mother in regional Victoria for a period, and was not able to find alternative employment.

[69] I am satisfied that the Applicant’s dismissal was harsh in its consequences for her personal and economic situation.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[70] I have made findings in relation to each matter specified in s.387 as relevant.

[71] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 13

[72] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable because there was no valid reason for her dismissal related to her capacity or conduct, there was no genuine redundancy of her position, she was not afforded procedural fairness in the process leading up to her dismissal and the dismissal has had harsh consequences for the Applicant, namely a sustained period of unemployment.

Conclusion on unfair dismissal

[73] I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act.

PART C: REMEDY

[74] Having found that the Applicant was protected from unfair dismissal, and that her dismissal was harsh, unjust and unreasonable, it is necessary to consider what, if any, remedy should be granted to her. The Applicant accepted that the remedy of reinstatement is inappropriate, and I am satisfied that it would be inappropriate to reinstate the Applicant in circumstances where I am satisfied that her relationship with Mr O’Neale has deteriorated to a significant extent. As a result, I need to consider whether compensation is appropriate.

[75] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”. 14

[76] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation 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. 15

[77] Having regard to all the circumstances of the case, including the fact that the Applicant has suffered financial loss as a result of her unfair dismissal, I consider that an order for payment of compensation to her is appropriate.

[78] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to the Applicant. In assessing compensation, I am required by s.392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.

[79] In undertaking this task, I shall use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases. 16 The approach to calculating compensation in accordance with these authorities is as follows:

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.

Step 5: Apply the legislative cap on compensation.

[80] I consider all the circumstances of the case below.

Remuneration the Applicant would have received, or would have been likely to receive, if she had not been dismissed (s.392(2)(c))

[81] Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed. 

[82] On the unchallenged evidence including of the Applicant’s age, personal and financial circumstances, I accept that she intended to remain working for the Respondent whilst continuing her university studies.

[83] There is some evidence before the Commission that the Respondent reduced its operating hours in response to the COVID-19 pandemic and that it was eligible for Job Keeper payments – strongly suggesting its business had suffered as a result of the COVID-19 pandemic. Whilst there is a possibility that the Applicant’s role may have become redundant, in the absence of any evidence or response on behalf of the Respondent, I am not able to attribute anything more than minimal weight to this.

[84] Notwithstanding the Applicant’s unblemished employment record, having regard to the evidence of the conduct of the Respondent and that the Applicant felt intimidated by the Director on account of her dealings with him, I consider it unlikely that the employment relationship would have continued for a lengthy period of time.

[85] I find, in all the circumstances, that but for the termination on 23 August 2020, the Applicant would have remained in employment with the Respondent for a period of four months (ie. until 23 December 2021). In so finding, I have had regard to the entire circumstances including the basis on which the termination was found to be unfair.

[86] It is, of course, possible that the Applicant could have been employed by the Respondent for a shorter or longer period than four months had she not been dismissed on 23 August 2020. In particular, she may have resigned within four months or her role may have become redundant. I have weighed the risks and factors that might have resulted in a shorter or longer period of employment in evaluating an anticipated period of employment of four months. Because I have already weighed those matters in determining the four month period of anticipated employment, I will not adjust the discount for contingencies on the basis of the risk of a shorter or longer period of employment than the four months.

[87] In calculating the remuneration the Applicant would have earned had she not been dismissed, it is necessary to identify what her rate of payment would have been. The Applicant’s evidence was that, immediately prior to her dismissal, she had agreed to work reduced part time hours of between 11 to 16 hours per week and was earning between $310 to $360 per week. There was one payslip in evidence which showed a base hourly rate of $24.50, a weekly payment of $379.75 gross (less applicable taxation) and financial year to date earnings (as at 7 August 2020) of $2,192.15 gross (less applicable taxation). The Applicant’s representative contended that her earlier, higher rate of remuneration (prior to the agreed reduction in hours) should be taken into account for present purposes given the likelihood her hours would have increased over the anticipated employment period. I accept that the Applicant’s estimate of her earnings immediately prior to the dismissal, on the agreed reduced hours arrangement, may have been slightly on the conservative side however accept this evidence as credible, consistent with the payslip in evidence and consider the mid-point of that estimate an appropriate rate to apply. Again, there is no evidence to the contrary.

[88] Accordingly, I am of the view that the Applicant would have been likely to receive a gross weekly wage of $335 per week had she not been dismissed. The Applicant would therefore have received $5,360 gross (less any applicable taxation) plus superannuation in the four months following 23 August 2020, had she not been dismissed at that time ($335 x 16 weeks = $5,360).

Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned between the making of the order for compensation and the actual compensation (s.392(2)(f))

[89] I accept that the Applicant had not earned any remuneration between the termination of her employment with the Respondent and the hearing of this matter. I am satisfied that her searches for other work had been unsuccessful.

[90] Although there was evidence of the Applicant eventually being able to access welfare payments again following her dismissal, I have not had regard to such payments consistent with the established authorities. 17

[91] Accordingly, there is no deduction to be applied on this ground.

Viability (s.392(2)(a))

[92] According to publicly available information, and in the absence of any evidence to the contrary, the Respondent’s business continues to operate. There is no evidence that any particular amount of compensation would affect the viability of the Respondent’s business. Indeed the Respondent declined the opportunity to provide such evidence.

[93] No adjustment will be made on this account.

Length of service (s.392(2)(b))

[94] The Applicant’s total period of 17 months’ service is not a circumstance that warrants any diminution of the amount of compensation that might otherwise be determined as justified.

Mitigation efforts (s.392(2)(d))

[95] The evidence was that, at the time of the hearing, the Applicant had only recently commenced searches for but had not yet obtained alternative employment following her dismissal on 23 August 2020.

[96] I am satisfied that her searches for other work had been hindered by virtue of needing to temporarily move to country Victoria with her mother but, having returned to Melbourne, that she was motivated to find another job and actively taking steps in this respect.

[97] In all the circumstances, I consider the Applicant has acted reasonably to mitigate her loss suffered because of the unfair dismissal and do not consider it appropriate to reduced the compensation on this account.

Any other relevant matter (s.392(2)(g))

[98] It is necessary to consider whether to discount the remaining amount for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which the Applicant was subject might have brought about some change in earning capacity or earnings.  Positive considerations which might have resulted in advancement and increased earnings are also taken into account.

[99] The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision.

[100] Because I am looking in this matter at an anticipated period of employment that has already passed, there is no uncertainty in this respect.

[101] Save for the matters referred to in this decision, there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s.392(1) of the Act.

[102] I have considered the impact of taxation, but I prefer to determine compensation as a gross amount and leave taxation for determination.

[103] Although I have summarised evidence of the Applicant that may be relevant to certain entitlements to payment for the purposes of determining this unfair dismissal application, that evidence was not subject of challenge in these proceedings. The Applicant’s claims concerning underpayment are properly to be pursued in a court of competent jurisdiction and ultimately a court would need to reach its own conclusions on those matters.

Misconduct (s.392(3))

[104] The Applicant did not commit any misconduct, so this has no relevance to the assessment of compensation.

Shock, distress or humiliation, or other analogous hurt (s.392(4))

[105] 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.

Compensation cap (s.392(5)-(6))

[106] The amount of $5,360 gross plus applicable superannuation is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which the Applicant was entitled in her employment with the Respondent during the 26 weeks immediately before her dismissal. In those circumstances, I am satisfied that there is no basis to reduce the amount of $5,360 gross plus applicable superannuation by reason of s.392(5) of the Act.

Instalments (s.393)

[107] No application was made by the Respondent for any amount of compensation awarded to be paid in the form of instalments.

Conclusion on compensation

[108] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, there is no basis for me to reassess the assumptions made in reaching the amount of $5,360 gross plus applicable superannuation. 18

[109] For the reasons I have given, I am satisfied that a remedy of compensation in the sum of $5,360 gross plus applicable superannuation in favour of the Applicant is appropriate in the circumstances of this case. I will issue an order [PR727343] to that effect.

DEPUTY PRESIDENT

Appearances:

Ms G. Marchetti for the Applicant.

Hearing details:

2020.

Melbourne (by Video).

18 November.

Printed by authority of the Commonwealth Government Printer

<PR727342>

ANNEXURE A – RESPONDENT’S NON-COMPLIANCE AND INSTANCES OF PARTICIPATION

a) On 31 August 2020, a Commission staff member telephoned Ms Claire Dransfield (Retail Manager of the Respondent) who confirmed that the email address nominated by the Applicant was the correct address to send correspondence in relation to this matter.
b) On 7 September 2020, the Commission sent a notice to the Respondent, at its nominated email address, which confirmed the matter was listed for conciliation conference on 18 September 2020.
c) On 15 September 2020, a Commission staff member emailed the Respondent and requested that the employer’s response form be completed. returned to the Commission and served on the Applicant within 7 days of receipt of the application.

d) On 15 September 2020, no employer’s response form was received and a Commission staff member telephoned the Respondent to confirm a contact telephone number for the conciliation. A message for Mr Warren O’Neale (Director of the Respondent) was left with Ms Dransfield, who requested an email be sent and provided an email address.
e) Also on 15 September 2020, the Respondent was again sent a copy of the notice of listing for the conciliation, the application and the employer’s response form (which had not been completed).
f) On 17 September 2020, the Commission sent reminders for the conciliation on 18 September 2020 to the Applicant and the Respondent by SMS to the mobile telephone numbers on file.
g) Also on 17 September 2020, a Commission staff member telephoned Mr O’Neale (Director of the Respondent) who answered. The Commission’s file note records that Mr O’Neale said he would answer the conciliator’s call and explain to the conciliator that they did not intend to participate and would not try to settle the matter.
h) On 18 September 2020, a Commission staff conciliator contacted the parties to commence the conciliation. The Commission’s file note records that the Respondent indicated that he did not wish to proceed with the conciliation as he was unaware that the Applicant was seeking to be represented (he said that he had not received the notice of such) and wanted to arrange representation. Mr O’Neale confirmed that the Commission had the correct mobile phone number and email address for communication in relation to this matter, and that he would consider participating in a conciliation. The conciliation did not proceed.
i) On 23 September 2020, a Commission staff member telephoned Mr O’Neale to confirm his consent to participate in conciliation. Mr O’Neale said this was not a good time to call and terminated the call. An email was sent from the Commission that same day, reiterating the request and seeking a response by 25 September 2020.
j) On 24 September 2020, Mr O’Neale wrote to the Commission in which he said: “Due to health reasons, I will not be available next week. I will contact you at my earliest convenience to arrange an adequate time.”.
k) On 28 September 2020, a Commission staff member emailed Mr O’Neale again to follow up on the request for a second conciliation. A response was sought that same day.
l) On 2 October 2020, the matter was set down for a directions conference on 6 October 2020. A notice of listing was sent to the Respondent at the nominated email address. The notice included a note that the matter would proceed in the event of any non-attendance by either party.
m) On 6 October 2020, my Associate telephoned Mr O’Neale at the nominated contact number to participate in the directions conference. Mr O’Neale did not answer and a voice message was left.
n) Also on 6 October 2020, a program of directions for the filing of materials and a notice of listing for the hearing was sent to the Respondent at the nominated email address. The notice invited the parties to apply to vary the directions and included an “important note” that “failure to comply with these directions may result in the Commission proceeding to determine the matter having regard to the material before the Commission and without hearing further from you”.
o) On 23 October 2020, the Applicant’s representative filed her evidence, submissions and list of authorities with the Commission and served a copy on the Respondent at its nominated email address.
p) On 6 November 2020, the Respondent did not file any evidence, submissions or list of authorities as directed and there had been no request for an extension of the time for filing or amendment to the directions.
q) On 18 November 2020, my Associated telephoned Mr O’Neale at the nominated contact number to participate in the hearing. Mr O’Neale did not answer and a voice message was left.

 1   In her Amended witness statement (Exhibit A1) and given orally, on affirmation, at the hearing on 18 November 2020.

 2   Witness Statement of Khanya Sibeko, Exhibit A1 at KS-8.

 3   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24] and Plaksa v Rail Corporation NSW [2007] AIRC 333 (Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne Print Q9605 (AIRC, Whelan C, 10 December 1998).

 4   Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia LtdPR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 5   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 6   Ibid.

 7   Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.

8 Edwards v Justice Giudice [1999] FCA 1836, [7].

 9   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 10   Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Gordon Square Child Care Centre [2013] FWCFB 762 at [46]-[49].

 11   Ibid.

12 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

 13   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].

 14   Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].

 15   Kable v Bozelle [2015] FWCFB 3512 at [17].

 16 1998) 88 IR 21; Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431.

 17   Shorten v Australian Meat Holdings Pty Ltd (1996) 70 IR 360; Megan Smith v Fearon Howard Real Estate Pty Ltd T/A Ray White (Balmain)[2021] FWCFB 581.

 18   Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32].