Kody Hansen v Metro Demolition Services Pty Ltd T/A DPC Demolition

[2020] FWC 6380

[2020] FWC 6380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kody Hansen
v
Metro Demolition Services Pty Ltd T/A DPC Demolition
(U2020/12852)

COMMISSIONER PLATT ADELAIDE, 7 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] On 24 September 2020, Mr Kody Hansen (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Metro Demolition Services Pty Ltd T/A DPC Demolition (DPC).

When can the Commission order a remedy for unfair dismissal?

[2] 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.”

[3] Both limbs must be satisfied. I am required to consider whether Mr Hansen was protected from unfair dismissal at the time of being dismissed and, if so satisfied, whether Mr Hansen has been unfairly dismissed.

When is a person protected from unfair dismissal?

[4] 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.”

[5] Based on the uncontested material before me, I am satisfied that Mr Hansen is protected from unfair dismissal. Mr Hansen has almost 2 years of service and despite being characterised as a casual employee, was engaged on a regular and systematic basis with a reasonable expectation of ongoing employment.

When has a person been unfairly dismissed?

[6] 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.”

Background

[7] The uncontested factual background to the matter is as follows:

•  Mr Hansen worked with DPC as a ‘casual’ labourer from 21 September 2018 to 16 September 2020.

•  Mr Hansen was paid $26.14 per hour and whilst his hours varied from week to week, he worked on a regular and systematic basis and it was agreed at the hearing that his weekly wage averaged $800 per week.

•  Mr Hansen was dismissed by a letter received on 16 September 2020.

•  Mr Hansen was not advised of the reasons for the dismissal prior.

•  Mr Hansen was not given an opportunity to respond.

•  Mr Hansen has not obtained alternative employment post dismissal.

[8] There was a dispute over the existence of a valid reason for the dismissal. Mr Hansen advised he was unaware of the reasons for the dismissal and became aware only after he filed this application. The Respondent appears to have determined to dismiss Mr Hansen as a result of his poor conduct and work performance. There being contested facts involved, the Commission is obliged to conduct a conference or hold a hearing.

[9] As each party had limited experience in industrial relations matters and was not represented, I determined to hold a Determinative Conference.

[10] Directions were issued with respect to the provision of statements and submissions and the date of the Determinative Conference (17 November 2020).

[11] At the Determinative Conference, Mr Hansen represented himself and Mr Tziortzis represented DPC. Mr Hansen sought permission for the attendance of a support person but this was declined owing to a recent escalation of the COVID-19 Pandemic in Adelaide.

Witnesses

[12] Mr Hansen submitted the following documents:

•  Outline of Submissions (which also contained evidence)

•  A response to the material submitted by the Respondent 1

•  A witness statement 2

•  A letter of complaint addressed to the Respondent dated 11 September 2020 3

•  A dismissal letter dated 14 September 2020 4

•  Copies of payslips 5

•  Extracts from his time book 6

[13] Mr Hansen’s relevant evidence is summarised as follows:

•  He worked as a labourer, demolishing houses, and would usually travel in the morning to the Respondent’s depot, be advised of the work for the day, collect the required tools and equipment and travel with a colleague to the worksite for the day in a Company truck. Mr Hansen was largely self-directed.

•  His role included removal of asbestos for which he was trained. If the quantity of asbestos exceeded a defined amount, the removal would be undertaken by a contractor and site monitoring and subsequent site clearance would be conducted by a specialist.

•  Despite his casual employment status, he worked regularly and his average income was $800 per week (gross).

•  He advised that he was late for work (by up to 5 minutes) once every two weeks. Mr Pica (Director) spoke to him about his lateness in March or May 2020.

•  He was advised that he had been repeatedly instructed to fill in his time sheets correctly (the time sheets contained a number of instructions in capital letters) and would forget to fill out the time book once or twice a week.

•  He was accused of being unprepared for the job tasks by not taking the correct tools and equipment with him, which would result in a special trip having to be made to obtain same. Mr Hansen accepted this occurred 5-10 times during his employment.

•  He was accused of working unsafely, with one example that he was standing on a wall that he was in the process of demolishing. Mr Hansen accepted this occurred and that it was inappropriate. Mr Hansen was also accused of unsafely scaling wall frames instead of using the ladders provided, he accepted that this had occurred.

•  Mr Hansen admitted that on one occasion he had removed asbestos from a worksite without wearing the appropriate PPE because he had forgotten to pack it, despite 90% of his work involving asbestos removal.

•  Mr Hansen was accused of seeking employment with another builder and encouraging another employee to go with him. Mr Hansen denied this accusation and said the other builder was seeking to lure him away.

•  Mr Hansen contended his dismissal was unfair as there was not a valid reason and he was not afforded procedural fairness. Mr Hansen believed that his dismissal was as a result of him writing a letter of complaint to the Respondent in September 2020.

•  Mr Hansen did not seek reinstatement and contended he would have continued in his employment for a month or two.

•  Mr Hansen had decided that the demolition business was not for him and was undertaking a training course for an alternate vocation, but had not yet sought alternative employment.

•  Mr Hansen was a very honest witness (even to his own detriment) and I accept his evidence.

[14] DPC submitted the following material:

•  Statement of Arthur Tziortzis 7

•  Statement of David Pica 8

•  Reports from DEMS (Asbestos Removal Inspection Service) 9

•  Mr Hansen’s employment contract 10 (dated 13 February 2019 with a commencement date of 21 September 2018)

•  The original time book (which was returned after the hearing completed)

[15] DPC called two witnesses, Mr Tziortzis and Mr Pica. Two other statements for witnesses that were not present were not received by the Commission.

[16] Mr Tziortzis (Project Manager) gave evidence which is summarised as follows:

•  The Respondent employed less than 15 persons at the time of the dismissal.

•  Mr Hansen was regularly late.

•  Mr Hansen did not complete his time book correctly despite instructions.

•  Mr Hansen failed to take the required equipment to site, which then required someone else to make a special trip to site to provide the equipment.

•  Mr Hansen worked in an unsafe manner and provided examples which were not disputed.

•  The decision to dismiss Mr Hansen was made prior to the receipt of his complaint dated 11 September 2020 and was as a result of him taking 14 sick days in the year.

•  Mr Hansen was not advised of the reason for the dismissal and not given an opportunity to respond prior to the dismissal.

•  Mr Hansen was not subject to a formal warning or disciplinary process prior to the dismissal or ever warned that his employment was at risk.

•  Mr Hansen was dismissed by way of a letter dated 14 September 2020 put in his pigeonhole and received on 16 September 2020.

[17] Mr Pica (Director) gave evidence and advised that:

•  Mr Hansen was advised each day of where he would be working and the nature of the tasks.

•  The Respondent had procedures in respect to the removal of asbestos. Where the amount of asbestos exceeded 10 square metres, an external contractor performed the removal and an independent entity certified the site was safe.

•  Mr Hansen was regularly late to work and did not ensure he took the required tools and equipment to each job.

•  Mr Pica said he raised issues with Mr Hansen about his work but did not accept this was harassment.

•  Mr Pica was concerned that Mr Hanson was being disloyal as another employer had tried to lure Mr Hansen (and another employee) to leave the Respondent’s employ.

•  The decision to dismiss was made after receiving the letter of complaint but not influenced by it.

•  The reasons for the dismissal were contained in a letter he drafted and put in Mr Hansen’s ‘pigeonhole’. Mr Hansen received the letter on 16 September 2020.

Has the Applicant been dismissed?

[18] There was no dispute that Mr Hansen had been dismissed from his employment.

Initial matters

[19] Section 396 of the Act requires that the following matters are decided 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?

[20] There was no evidence that Mr Hansen’s application was made beyond 21 days after the dismissal took effect.

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

Minimum employment period

[21] It was not disputed that Mr Hansen had not met this requirement. Despite being a ‘casual’ employee, Mr Hansen’s engagement was regular and systematic and he had a reasonable expectation of ongoing employment.

Applicant’s annual rate of earnings

[22] It was agreed between the parties and I find that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings was $800 per week on average. I find that this amount is less than the high income threshold.

[23] 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?

[24] 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.”

[25] At the time of the dismissal DPC engaged 4 employees and therefore I find that the Respondent was a small business employer within the meaning of s.23 of the Act at the relevant time. It is therefore necessary to consider whether the Respondent complied with the Small Business Fair Dismissal Code (SBFDC) in relation to the dismissal. There were no submissions that DPC complied with the SBFDC, however I have considered whether the Code was complied with.

[26] The allegations in respect of Mr Hansen’s conduct and work performance were not such to support a characterisation of summary dismissal.

[27] Mr Hansen’s dismissal would thus fall under the category of ‘other dismissal’. Mr Hansen was never warned that he risked being dismissed if he did not improve. Mr Hansen was not given the reason why he was dismissed or an opportunity to respond.

[28] Based on the material before me, I am not satisfied that DPC complied with the Small Business Fair Dismissal Code in relation to the dismissal.

Was the dismissal a case of genuine redundancy?

[29] There was no suggestion that the dismissal was a genuine redundancy.

[30] I find that Mr Hansen was protected from unfair dismissal and having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

[31] 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.”

[32] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 11

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

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

[34] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 12 and should not be “capricious, fanciful, spiteful or prejudiced.”13 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.14

[35] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. 15 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.

Evidence

[36] It is not in dispute that Mr Hansen was regularly late for work, whilst the lateness may have been measured in minutes, the repeated instances of this conduct adversely impacted the performance of work.

[37] Mr Hansen repeatedly failed to correctly complete his time book despite the failures being raised with him.

[38] Mr Hansen repeatedly failed to ensure the appropriate tools and PPE was transported to the workplace and occasionally worked in an unsafe manner.

[39] The interactions Mr Hansen had with a potential employer who was seeking to lure him (and possibly another) away from employment with the Respondent is, on the evidence submitted, not a valid reason.

[40] The writing of a letter of complaint by Mr Hansen is not a valid reason but is relevant to the working relationship between Mr Hansen and DPC.

[41] In all the circumstances, I find that Mr Hansen’s conduct combined represented a valid reason related to his conduct.

Was the Applicant notified of the valid reason?

[42] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 16 and in explicit17 and plain and clear terms.18

[43] There was no dispute that Mr Hansen was not notified of the reasons for his dismissal prior to the decision being made.

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

[44] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reasons for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 19

[45] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 20 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.21

[46] There was no dispute that Mr Hansen was not given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss being made.

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

[47] 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.

[48] 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.” 22

[49] In the circumstances, I find that the DPC did not unreasonably refuse to allow Mr Hansen to have a support person present at discussions relating to the dismissal, noting that no meeting was held.

Was the Applicant warned about unsatisfactory performance before the dismissal?

[50] Some of the issues concerning Mr Hansen’s work performance (lateness, time sheet completion and ensuring that the necessary tools and equipment was taken to site) were discussed with Mr Hansen as they occurred.

[51] Even when I take into account the unsophisticated human resource practices, there was no evidence that DPC identified the issues as performance failings of concern, which put Mr Hansen’s employment at risk. 23

[52] Having regard to the matters above, I find that the Mr Hansen was not warned of his unsatisfactory performance before dismissal.

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

[53] Neither party submitted that the size of DPC’s enterprise was likely to impact on the procedures followed in effecting the dismissal, however I accept that the unsophisticated nature of the workplace had an impact on the procedures followed.

[54] It appears that the DPC misunderstood the effect of Clause 23 of Mr Hansen’s Contract of Employment, to allow the employer to terminate Mr Hansen’s employment (regardless of the circumstances) upon one hours’ notice. The Respondent also failed to recognise the impact of Mr Hansen’s regular and systematic engagement on the correct characterisation of Mr Hansen’s employment status. This however does not excuse the lack of procedural fairness.

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?

[55] Having regard to the foregoing, I find that DPC’s enterprise lacked the dedicated human resource management specialists and expertise which had an impact on the procedures followed in effecting the dismissal. I do not however accept that this excuse the complete absence of procedural fairness.

What other matters are relevant?

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

[57] There does not appear to be any other matters that are relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable.

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

[58] I have made findings in relation to each matter specified in s.387 of the Act as relevant.

[59] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 24

[60] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was harsh and unreasonable.

Conclusion

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

Remedy

[62] Being satisfied that the Applicant:

•  made an application for an order granting a remedy under s.394;

•  was a person protected from unfair dismissal; and

•  was unfairly dismissed within the meaning of s.385 of the Act,

[63] I may, subject to the Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.

[64] Under s.390(3) of the Act, I must not order the payment of compensation to the Applicant unless:

“(a) I am satisfied that reinstatement of the Applicant is inappropriate; and

(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.”

Is reinstatement of the Applicant inappropriate?

[65] Mr Hansen did not seek reinstatement and advised he was seeking a career change. I have also considered the deteriorating relationship between the parties.

[66] I find that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.

Is an order for payment of compensation appropriate in all the circumstances of the case?

[67] 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…” 25

[68] In all the circumstances, I consider that an order for payment of compensation is appropriate because of the lack of any warning process and the complete absence of procedural fairness.

Compensation – what must be taken into account in determining an amount?

[69] Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:

“(a) the effect of the order on the viability of the Respondent’s enterprise;

(b) the length of the Applicant’s service;

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

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

(e) the amount of any remuneration earned by the Applicant 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 Applicant during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the Commission considers relevant.”

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

Effect of the order on the viability of the Respondent’s enterprise

[71] There is no contention and I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise.

Length of the Applicant’s service

[72] Mr Hansen’s length of service was just under two years.

[73] I consider that the length of service does not support reducing or increasing the amount of compensation ordered.

Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed

[74] As stated by a majority of the Full Court of the Federal Court:

“In 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.” 26

[75] Mr Hansen submitted that his employment would have been likely to continue for a further period of 4 to 8 weeks and the amount of remuneration that the Applicant would have received or would have been likely to receive during that period is $3,600 to $4,800.

[76] The Respondent did not make a submission on this topic.

[77] I find that collectively Mr Hansen’s conduct failings were significant and ongoing and that Mr Hansen had not responded to informal prompting about his lateness, tardiness in time sheet completion or being appropriately prepared to complete the work for the day.

[78] Had the DPC appropriately warned Mr Hansen (preferably in writing) and advised that in the absence of improvement his employment would be dismissed, the dismissal would most likely have withstood challenge. Mr Hansen’s view about his expected length of continued employment is optimistic in the circumstances.

Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal

[79] The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal. 27 What is reasonable depends on the circumstances of the case.28

[80] Mr Hansen advised he had not sought alternative employment to date, he had determined not to seek employment in the industry in which he is working and had made a decision to seek an alternative career which required further training. In my view, Mr Hansen has not taken reasonable steps to minimise the impact of his dismissal and this supports a reduction in the compensation award of one sixth.

Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation

[81] Mr Hansen had not earnt any income from employment or other work since the dismissal (noting that receipt of Social Security benefits are excluded).

Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation

[82] Mr Hansen’s evidence was that he is unlikely to earn any money in the period between the making of the order for compensation and the payment of compensation.

[83] I am satisfied that the amount of income reasonably likely to be earned by Mr Hansen between the making of the order for compensation and the payment of compensation is $Nil.

Other relevant matters

[84] There are no other relevant matters.

Compensation – how is the amount to be calculated?

[85] As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg). 29 This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages.30

[86] The approach in Sprigg is as follows:

Step 1: Estimate the remuneration the Applicant 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 1

[87] I have estimated that Mr Hansen would have continued in employment for a period of 3 weeks. The remuneration Mr Hansen would have received, or would have been likely to have received, if he had not been terminated would have been $2,400 (gross). This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”. 31

Step 2

[88] I have found that the amount of remuneration earned by Mr Hansen from the date of dismissal was $Nil, and that the amount of income reasonably likely to be earned by Mr Hansen between the making of the order for compensation and the payment of compensation is $Nil.

[89] There is no need to deduct any monies due to post dismissal earnings.

Step 3

[90] I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment. 32

[91] I do not believe it is appropriate to make any adjustment on account of contingencies.

Step 4

[92] I have considered the impact of taxation but have elected to settle a gross amount and leave taxation for determination.

[93] I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the Act.

Compensation – is the amount to be reduced on account of misconduct?

[94] If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by s.392(3) of the Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.

[95] I am satisfied that the misconduct of Mr Hansen significantly contributed to the employer’s decision to dismiss and that a deduction of one third is warranted.

Compensation – how does the compensation cap apply?

[96] Section 392(5) of the Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:

“(a) the amount worked out under section 392(6); and

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

[97] The amount awarded does not exceed the compensation cap.

Conclusion

[98] In light of the above, I will make an order that the Respondent pay $1,600 gross (that is 3 weeks average wages less deductions of one third) less taxation as required by law, to Mr Hansen, in lieu of reinstatement. Payment is required within 7 days of the date of the previously published Order. 33

COMMISSIONER

Appearances:

Mr K Hansen on his own behalf.

Mr A. Tziortzis for the Respondent

Hearing details:

Adelaide.
November 17
2020.

Printed by authority of the Commonwealth Government Printer

<PR724933>

 1   Exhibit A2

 2   Exhibit A3

 3   Exhibit A5

 4   Exhibit A6

 5   Exhibit A7

 6   Exhibit A9

 7   Exhibit R1

 8   Exhibit R6

 9   Exhibit R2

 10   Exhibit R5

 11   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]

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

 13   Ibid

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

 15   Edwards v Justice Giudice [1999] FCA 1836, [7]

 16   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151

 17   Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)

 18   Ibid.

 19   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]

 20   RMIT v Asher (2010) 194 IR 1, 14-15

 21   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7

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

 23   Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44]

 24   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]

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

 26   He v Lewin [2004] FCAFC 161, [58]

 27   Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45]

 28   Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581

 29 (1998) 88 IR 21

 30   [2013] FWCFB 431

 31   Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34]

 32   Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39]

 33   PR724620