DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kris Ting
v
Superstop Auto Parts
(U2018/8923)

COMMISSIONER MCKINNON

MELBOURNE, 13 MARCH 2019

Application for an unfair dismissal remedy - compensation.

[1] On 15 February 2009, I issued a Decision 1 in which I found that the dismissal of Kris Ting by Superstop Auto Parts Pty Ltd (Superstop) was unfair.

[2] The parties subsequently filed materials on the question of remedy. This decision deals with the matter to finality.

Submissions

[3] Ting submits that despite applying for 43 jobs in accounts and administration roles over the period from 31 August 2018 to 21 February 2019 (approximately 1 to 2 per week), she has only recently obtained alternative employment and has earned a small amount of income as a result. She says Superstop’s refusal to provide her with a statement of service after the termination of her employment was an impediment to her obtaining other employment. It is apparent from her submissions that in applying for employment, she did so directly and avoided the use of recruitment agencies. 2

[4] Superstop submits that its financial position has not improved since Ting’s dismissal and that its viability will be affected by any order for compensation. It says it has no capacity to make any further payments because it “is and has been struggling from some time”. If compensation is ordered, Superstop has applied to pay by instalments.

Compensation

[5] Having regard to my findings in the Decision 3, I am satisfied Ting has been adversely affected by the dismissal and that compensation is an appropriate remedy in this case.

[6] Section 392(2) of the Act deals with how compensation is to be assessed in connection with an unfair dismissal. The established methodology is discussed in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc (Bowden). 4

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

[7] Ting had a substantial period of service with Superstop and a personal interest in the business as shareholder. Evidence in the proceedings establishes that Superstop had concerns about Ting’s performance, some of which only became apparent at or around the time of dismissal. But for the dismissal, in my view she would have remained in employment with Superstop for another 6 months, but in a part time role, working 20 hours per week.

[8] Her annual salary at the time of dismissal was $82,839.64 gross, which equates to $1593.07 gross per week or approximately $41 per hour. Adjusting the amount (on account of the part-time role) equates to $820.00 gross, which I find to be the likely weekly earnings capacity of Ting in the 6 month period following dismissal. This gives a total of $21,320 gross (26 weeks x $820).

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

[9] I accept the submissions of Superstop that an order requiring it to pay Ting compensation will adversely affect the viability of its business, because of the precarious financial position it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 1651
Decision Date: 13 MARCH 2019

CaseChat Overview and Summary

The applicant, Kris Ting, sought relief from the Fair Work Commission against his former employer, Superstop Auto Parts, on the basis of unfair dismissal. The crux of the dispute revolved around the termination of Mr Ting's employment, which he claimed was unjust and not in accordance with the provisions of the Fair Work Act 2009. The Fair Work Commission, presided over by Deputy President J A R Ryan, was tasked with determining the legitimacy of the dismissal and the appropriate remedy, if any.

The central legal issues before the Commission were whether Mr Ting's dismissal was indeed unfair and, if so, the extent of any compensation he should receive. The Commission needed to assess if the termination of employment was valid under the circumstances and whether there were any mitigating factors that would affect the fairness of the dismissal. Additionally, the Commission had to consider the procedural fairness of the dismissal process and whether it complied with the requirements of the Act.

In examining the matter, Deputy President Ryan delved into the specifics of the dismissal, including the reasons provided by Superstop Auto Parts for the termination, the procedural fairness of the process, and the evidence presented by both parties. The Commission found that the employer had failed to follow proper procedures, which contributed to the unfairness of the dismissal. Consequently, the Commission ruled that Mr Ting's dismissal was indeed unfair. The decision included an order for compensation, which was quantified based on the loss of earnings and the procedural shortcomings of the dismissal process.

Orders