Laura Ramos v Coast Community Pty Ltd

[2021] FWC 1480

[2021] FWC 1480

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Laura Ramos
v
Coast Community Pty Ltd
(U2020/15611)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 18 MARCH 2021

Unfair dismissal – whether dismissal harsh, unjust or unreasonable – compensation.

Introduction

[1] Ms Laura Ramos was employed by Coast Community Pty Ltd (Coast Community) as a disability support worker from 7 January 2020 until her summary dismissal on 2 December 2020.

[2] I conducted a hearing in this matter on 15 March 2021. Ms Ramos represented herself at the hearing and gave evidence in support of her case.

[3] Coast Community barely participated in these proceedings before the Fair Work Commission (Commission). Coast Community did not file a response to Ms Ramos’s unfair dismissal application. Ms Denise Clissold, a director of Coast Community, participated in a directions hearing, by telephone, on 21 January 2021. At that directions hearing the parties were informed of the directions that would be made to prepare the matter for hearing, together with the fact that the hearing would take place in the Commission in Newcastle at 10am on 15 March 2021. Later on 21 January 2021, an email was sent to the parties to confirm the directions that had been made and the fact that the hearing would take place on 15 March 2021. Ms Ramos complied with those directions. Coast Community did not. It failed to file or serve any witness statements, documents or submissions by 4pm on 4 March 2021. On 5 March 2021 Coast Community was reminded, in writing, that it had failed to file and serve its material by 4pm on the previous day. Coast Community was then given an extension until 4pm on 8 March 2021 to file and serve its material. Coast Community was also informed, in writing, that if it did not file any material by 4pm on 8 March 2021, it would not be permitted to call any witnesses or tender any evidence at the hearing on 15 March 2021 without my leave. Coast Community did not file or serve any material by 4pm on 8 March 2021, and has not since that time filed or served any response, witness statements, or documents.

[4] On 9 March 2021 my Associate wrote to the parties to remind them that the hearing would commence at 10am on 15 March 2021. I am confident that Coast Community received that email communication, together with all other emails sent from my chambers to Coast Community, because those communications were sent to the email address used by Coast Community to communicate with my chambers in these proceedings, as well as in two other unfair dismissal proceedings to which Coast Community was a party in 2021.

[5] At 9:31am on the morning of the hearing, my Associate contacted Ms Sarah Lane, Chief Financial Officer of Coast Community, , by telephone, in response to Ms Lane’s voicemail at 9.22am requesting a return telephone call. During the telephone call, Ms Lane informed my Associate that Coast Community would not be attending the hearing.

[6] At the commencement of the hearing on 15 March 2021 Ms Ramos was present and there was no appearance by or on behalf of Coast Community. I asked Ms Ramos whether she wished to participate in a conciliation conference with Coast Community by telephone (if it could be organised) before the hearing commenced. Ms Ramos agreed.

[7] A short conciliation conference took place. Ms Ramos participated in person in a conference room. Ms Lane and Ms Wright, General Manager of Coast Community, participated by telephone. The conciliation was unsuccessful. The hearing then commenced in the hearing room.

[8] Ms Ramos gave sworn evidence in support of her case. I asked Ms Ramos a number of questions in relation to the reasons for termination stated in the termination letter and her claim for compensation. I have determined Ms Ramos’s unfair dismissal application on the basis of her oral evidence and the documents she tendered in support of her case.

Was Ms Ramos dismissed?

[9] The question of when a person has been dismissed is governed by s 386 of the Fair Work Act 2009 (Cth) (Act):

“(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[10] In a termination letter dated 2 December 2020, Coast Community informed Ms Ramos that “it is appropriate that your employment should be terminated with immediate effect and without notice”. Confusingly, the letter went on to state, in the next paragraph, that “we maintain the view that it is appropriate that your employment should be terminated with immediate effect. Your notice will be paid to you in lieu in due course.” I accept Ms Ramos’s evidence that she did not receive any payment in lieu of notice.

[11] It is clear from the termination letter dated 2 December 2020 that Ms Ramos was dismissed by Coast Community within the meaning of s 386(1)(a) of the Act.

Other preliminary matters

[12] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of Ms Ramos’s unfair dismissal application.

[13] Having made a finding that Ms Ramos was dismissed, I am satisfied on the evidence that:

(a) Ms Ramos’s unfair dismissal application was made within the period required in s 394(2) of the Act;

(b) Ms Ramos commenced employment with Coast Community as a casual on 7 January 2020 and took up permanent part time employment with Coast Community in May 2020. She was dismissed on 2 December 2020. As a disability support worker, Ms Ramos was plainly covered by a modern award. Ms Ramos was a person protected from unfair dismissal;

(c) the Small Business Fair Dismissal Code did not apply to Ms Ramos’s dismissal; and

(d) Ms Ramos’s dismissal was not a genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

[14] Section 387 of the Act requires that I take into account the matters specified in paragraphs (a) to (h) of the section in considering whether Ms Ramos’s dismissal was harsh, unjust and/or unreasonable. I will address each of these matters in turn below.

Valid reason (s 387(a))

[15] It is necessary to consider whether the employer had a valid reason for the dismissal of the employee, although it need not be the reason given to the employee at the time of the dismissal. 1 In order to be “valid”, the reason for the dismissal should be “sound, defensible and well founded”2 and should not be “capricious, fanciful, spiteful or prejudiced.”3

[16] 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. 4 The question the Commission must address is whether there was a valid reason for the dismissal related to the employee’s capacity or conduct (including its effect on the safety and welfare of other employees).⁵ Capacity is the employee’s ability to do the job as required by the employer.6 Capacity also includes the employee’s ability to do the work they were employed to do.7

[17] The appropriate test for capacity is not whether the employee was working to their personal best, but whether the work was performed satisfactorily when looked at objectively. 8

[18] It is not enough for an employer to establish that it had a reasonable belief that the termination was for a valid reason. 9 The Commission must make a finding, on the evidence provided, whether, on the balance of probabilities, the conduct occurred or the performance was satisfactory.¹⁰

[19] The termination letter contains the following information in relation to the reasons for Ms Ramos’s dismissal:

“Its alleged that on 16-10-2020, you openly discussed confidential information regarding Bowie Williams (a client of the Employer). Specifically, it is alleged that you shared personal, medical and confidential information regarding Bowie transferring with you to another organisation along with the consistent support worker; with an external company to attempt to poach. This is in breach of your employment obligations to maintain Company and client confidentiality and information. Such conduct has the potential to adversely impact on harmonious relationships and morale in the workplace, the health and safety of our clients, as well as impact on the trust and confidence in the employment relationship that you have with the Company. The behaviour also has potential to cause severe reputational damage to the Company and detrimentally impact the commercial relationships is has with its clients.”

[20] Ms Ramos gave evidence to the effect that she denies these allegations. I accept Ms Ramos’s evidence in that regard. I also accept Ms Ramos’s unchallenged evidence that:

•  she was the support worker for Mr Williams on a regular basis (usually three days per week). Another support worker employed by Coast Community, Tammy, provided support to Mr Williams on other days of the week;

•  Ms Ramos’s team leader, Jo, was absent from work for a period of about two months in about July/August 2020 due to a personal illness. During that time, Ms Ramos and Tammy started having regular weekly “hand over” or “debrief” discussions to exchange relevant information they needed to know in order to ensure that Mr Williams was provided with appropriate care and support. By way of example, these “hand over” discussions involved communication about any appointments that had been booked for Mr Williams, such as a medical appointment, attendance at a music group or an appointment to have his hair washed at the hair dressing salon operated by Coast Community;

•  Ms Ramos did not have any access to information in relation to Mr Williams’s specific medical condition. For example, Ms Ramos does not even know Mr Williams’s diagnosis;

•  Ms Ramos did not discuss or disclose any confidential, personal or medical information regarding Mr Williams to any person. Coast Community has never provided Ms Ramos with any particulars of the confidential, personal or medical information she is alleged to have shared with another person;

•  after her shift on 15 October 2020, Ms Ramos attended a group meeting with other employees of Coast Community. Tammy was unable to attend the meeting. At the meeting Jo stated that they would be having these regular “catch-up” meetings every fortnight to debrief and catch-up about clients. Ms Ramos asked Jo whether she wanted her to tell Tammy about the regular meetings. Jo said, “No, Tammy does not need to attend because she’s classified as ‘domestic’”. After the meeting Ms Ramos spoke to Tammy (without any other person present) and told her that she was not required to attend the meetings because she was classified as “domestic”. Tammy became upset over Jo’s comments about her not being required at the meetings and being classified as “domestic”. Ms Ramos did not discuss Mr Williams with Tammy during this call; she simply relayed what Jo had informed her earlier at the group meeting;

•  Ms Ramos did not take any steps to have Mr Williams transfer to another organisation;

•  Ms Ramos did not disclose information about Mr Williams to another person in connection with a potential transfer of Mr Williams to another organisation; and

•  Ms Ramos did mention at one stage to Tammy that she was thinking of leaving her employment with Coast Community. Ms Ramos made this comment in the following context. Jo had been on leave for about two months in July and August 2020, and Ms Ramos and Tammy were not provided with support by Coast Community during this time. Out of frustration at this, Ms Ramos made a comment to Tammy (without any other person being present) to the effect that “if this continues, I think I’ll probably leave.” Tammy responded by saying she would probably leave too. Ms Ramos then said words to the effect, “It will be a shame, though, because [client] will be left without support. I wish some company could help him.” At no point did Ms Ramos state anything about leaving to work for a different company, or that she intended to take clients with her. This conversation took place in about August 2020. Jo returned from leave not long after this conversation between Ms Ramos and Tammy. Ms Ramos continued working for Coast Community until her suspension on 16 October 2020. Ms Ramos had no intention of leaving her employment with Coast Community.

[21] It was entirely appropriate in the circumstances for Ms Ramos to have a regular “hand over” discussion with Tammy to ensure relevant information was passed between them in relation to the client they were caring for and providing support to. It was also appropriate for Ms Ramos to inform Tammy that she was not required to attend the regular meetings.

[22] On the material before the Commission, I find that Ms Ramos did not engage in the conduct alleged against her in the letter of termination and did not engage in any conduct or poor performance such as to give Coast Community a sound, defensible or well-founded reason to terminate her employment. There was no valid reason for Ms Ramos’s dismissal.

Was Ms Ramos notified of the reason for her dismissal and given an opportunity to respond (s 387(b) & (c))?

[23] On 16 October 2020 Ms Ramos received a call about 30 minutes into her shift from Ms Wright, who informed her that she had breached Coast Community’s Code of Conduct and had to leave immediately. Ms Ramos followed that instruction and then called Ms Wright back. Ms Wright informed Ms Ramos that she was not permitted to discuss the matter. Ms Ramos requested, in writing, on 16 October 2020 details as to what she had “supposedly done wrong”. No such information was ever provided to Ms Ramos prior to her dismissal.

[24] Ms Ramos received a confirmation of suspension letter dated 4 November 2020, but it did not provide her with any of the details of the allegations made against her.

[25] Ms Ramos remained on paid suspension from 16 October 2020 until her dismissal on 2 December 2020, at which time she received her termination letter by email. Ms Ramos was only informed of the termination of her employment with Coast Community by email. She was not called, or invited to attend a meeting, to inform her of her dismissal or the reasons for it.

[26] On the material before the Commission, Ms Ramos was not notified of the reason for her dismissal, or given an opportunity to respond to that reason, before she was notified of her dismissal. These factors (s 387(b) and (c)) weigh in favour of Ms Ramos’s contention that her dismissal was unfair.

Was there an unreasonable refusal to allow Ms Ramos to have a support person present (s 387(d))?

[27] Ms Ramos did not request that a support person be present during any discussion relating to her dismissal. That is because Coast Community did not have any meeting with Ms Ramos to discuss the allegations against her or her response to them.

[28] In the circumstances, I find there was no unreasonable refusal by Coast Community to allow Ms Ramos to have a support person present to assist at any discussions relating to her dismissal.

Warnings about unsatisfactory performance (s 387(e))

[29] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, it is relevant to consider whether the employer warned the employee about the unsatisfactory performance before the dismissal.

[30] Ms Ramos was not dismissed for unsatisfactory performance, so this criterion is not relevant.

Impact of Coast Community’s size and the absence of dedicated human resource management specialists or expertise on procedures followed in effecting the dismissal (ss 387(f)&(g))

[31] On the limited material before the Commission, I am not satisfied that the size of Coast Community’s enterprise or the absence of dedicated human resource management specialists or expertise had any impact on the procedures followed in effecting the dismissal. In all the circumstances, these are neutral considerations.

Other relevant matters (s 387(h))

[32] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[33] Coast Community failed to afford Ms Ramos any procedural fairness. It did not put the allegations to her, or allow her to respond to them, prior to making its decision to summarily terminate her employment. That decision was only communicated to Ms Ramos by email. The absence of anything like a fair process weighs in favour of Ms Ramos’s contention that her dismissal was harsh, unjust and unreasonable.

[34] In August 2020 Ms Ramos contacted the Australian Taxation Office in relation to a failure on the part of Coast Community to make superannuation contributions on her behalf. At about this time Ms Ramos also chased the provision by Coast Community of a group certificate (now known as a Pay As You Go payment summary) for the 2019/20 financial year. I accept Ms Ramos’s evidence that after she contacted the Australian Taxation Office she was verbally abused over the telephone by Coast Community and her hours of work were reduced to three days per week. I find that Ms Ramos’s hours of work were reduced because she raised these issues about her unpaid superannuation and provision of a Pay As You Go payment summary.

[35] The payslips and bank records tendered by Ms Ramos demonstrate that her gross average weekly wages from Coast Community reduced from about $942.57 11 in the period from 20 April 2020 until 9 August 2020 to $732.19 in the period from 10 August 2020 until 18 October 2020. For the purpose of this comparison, I have disregarded Ms Ramos’s earnings from Coast Community in the period from 19 October 202012 until her dismissal on 2 December 2020 because Ms Ramos was suspended from 16 October 2020 until her dismissal and was only paid her minimum contracted hours of 15 hours per week during this period. Ms Ramos ordinarily worked many more hours than 15 per week for Coast Community. I also note that Coast Community made some JobKeeper payments to Ms Ramos in 2020 which were over and above the payments owing to her for her hours of work. Reference is made to such payments in at least one payslip13 provided to Ms Ramos, but the amount of the JobKeeper payment is not apparent from the payslips. I have compared the net earnings as disclosed in Ms Ramos’s bank statements14 to the net earnings as shown on the payslips15 and this comparison supports the contention made by Coast Community in an email to Ms Ramos dated 9 October 202016 that some JobKeeper payments were made to Ms Ramos. I have not taken any of the JobKeeper payments into account in calculating Ms Ramos’s gross average weekly remuneration in the period from 20 April 2020 until 9 August 2020; I have only had regard to the actual hours worked by Ms Ramos, as disclosed in the payslips.

[36] Further, on 9 October 2020 Ms Ramos sent an email to Ms Clissold in which she raised the issue of the unpaid superannuation contributions. Later that evening Ms Clissold responded by email, stating that “all super has been forwarded to the ATO months ago now. They are dispersing payments.” Ms Ramos gave unchallenged evidence, which I accept, that the only superannuation contributions she received in respect of her employment with Coast Community were made in about late October/early November 2020, 17 and there still remains a shortfall in the superannuation contributions that should have been made on her behalf by Coast Community. Ms Ramos has still not been provided with a Pay As You Go payment summary by Coast Community for the 2019/20 financial year. Given the time at which Ms Ramos raised these issues concerning superannuation and the provision of appropriate records, her suspension a short while later on 16 October 2020, and the failure of Coast Community to present any material to either Ms Ramos during her employment or to the Commission in these proceedings to substantiate its allegations against Ms Ramos, I find on the balance of probabilities that at least part of the reason for Ms Ramos’s dismissal was the fact that she had raised these matters with Coast Community and the Australian Taxation Office. It was manifestly unfair for Coast Community to rely on any such matters in making its decision to dismiss Ms Ramos.

Conclusion on harsh, unjust and unreasonable

[37] After considering and taking into account each of the matters specified in s 387 of the Act, my value judgment is that the Coast Community’s dismissal of Ms Ramos was harsh, unjust and unreasonable. It was unjust because, on the material before the Commission, Ms Ramos did not engage in the conduct alleged against her in the termination letter. It was harsh because it was disproportionate to Ms Ramos’s conduct and performance. The dismissal was also harsh in the sense that it caused Ms Ramos to suffer financial loss. It was unreasonable because Coast Community did not afford Ms Ramos any procedural fairness and, on the material before the Commission, there was no basis on which a reasonable employer could have concluded that Ms Ramos acted inappropriately or performed her duties in a deficient manner. Further, I am satisfied on the material before the Commission that the decision to dismiss was unreasonable because it was motivated, at least in part, by the valid queries Ms Ramos was making in relation to her unpaid superannuation and the failure to provide her with a Pay As You Go payment summary.

Compensation

[38] Having found that Ms Ramos 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. Ms Ramos did not seek the remedy of reinstatement and I accept that it would be inappropriate to reinstate Ms Ramos in all the circumstances. Instead, Ms Ramos seeks the remedy of compensation. As a result, I need to consider whether compensation is appropriate.

[39] 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. 18

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

[41] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Ms Ramos. 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.

[42] I will use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket 19 and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases.20 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.

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

[43] 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. 21

[44] On the one hand, Ms Ramos says that she enjoyed working with the clients to whom she provided care and support during her employment with Coast Community. Ms Ramos was also pleased that she had permanent work with Coast Community, with an entitlement to at least 15 hours a week and she usually worked significantly more hours each week. Further, although Ms Ramos considered leaving Coast Community when her team leader was absent from work in about mid-2020 and she had a lack of support at work, those difficulties ended in about August 2020 when Jo returned to work. These matters support Ms Ramos’s evidence that she believes she would have remained in employment with Coast Community for up to about six months if she had not been dismissed on 2 December 2020.

[45] On the other hand, Ms Ramos was only employed by Coast Community for just less than one year and there is no doubt that Ms Ramos was frustrated by the failure of Coast Community to make superannuation contributions on her behalf and provide her with a Pay As You Go payment summary. As Ms Ramos accepted in her evidence, if these things did not improve in 2021 she would have looked for alternative employment.

[46] In all the circumstances and weighing up the likelihood of the various possibilities, my finding is that Ms Ramos would have remained employed by Coast Community for a further four months had her employment not come to an end on 2 December 2020.

[47] Ms Ramos’s gross average weekly remuneration from Coast Community in the period from period from 20 April 2020 until 9 August 2020 was $942.57. 22 I find that she would have continued to receive this gross average weekly level of remuneration had she not been unfairly dismissed on 2 December 2020. I have not used Ms Ramos’s remuneration in the period from 10 August 2020 until her suspension on 16 October 2020 because during this time Coast Community reduced Ms Ramos’s hours of work as a consequence of her raising issues with the Australian Taxation Office about her unpaid superannuation.23 It would be both inappropriate and unfair to use the lower amount of remuneration paid to Ms Ramos during this period as a means of assessing the amount of remuneration Ms Ramos would have been paid had she not been unfairly dismissed and instead continued in her employment with Coast Community for a period of four months. Similarly, I have not used the remuneration paid to Ms Ramos in the period from her suspension until her dismissal as the means of assessing her likely future remuneration because Ms Ramos was only paid her minimum contracted hours (15 per week) during this period. The reality is that Ms Ramos consistently worked many more than 15 hours per week during her employment with Coast Community. Had she remained in that employment beyond 2 December 2020, I am confident that Ms Ramos would have continued to work many hours beyond her minimum contracted hours. In my view, the actual hours Ms Ramos would have worked if she had not been unfairly dismissed on 2 December 2020 is most likely to be reflected in the average weekly hours she worked from 20 April 2020 until 9 August 2020.

[48] It follows that in the period from 3 December 2020 to 2 April 2021 (a period of four months) Ms Ramos would have received $16,155.65 gross (17.14 weeks x $942.57 = $16,155.65). That is the remuneration that Ms Ramos would have received, or would have been likely to receive, if she had not been dismissed.

Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))

[49] In respect of the period from 3 December 2020 until 7 March 2021, Ms Ramos tendered pay slips from her new employers 24 which show that she received $9,415.22 gross in this period. Ms Ramos had two employers in this period. Ms Ramos commenced her first new casual employment in mid-January 2021 and has since finished that employment. Ms Ramos commenced her second new casual employment in mid-February 2021 and remains in that employment relationship. Ms Ramos expects to continue to receive a similar number of hours work with her new employer as she has been getting in the fortnight from 22 February 2021 until 7 March 2021. She is also hopeful that her new employment may become permanent, rather than casual, if it continues to work out well.

[50] As to the period from 8 March 2021 until the making of the order for compensation on 18 March 2021, Ms Ramos did not have a payslip to tender at the hearing because she had not been provided with one and part of that period had not passed at the time of the hearing. I find that during this period it is likely that Ms Ramos continued to receive the same level of remuneration in her new employment as she did in the fortnightly pay period from 22 February 2021 until 7 March 2021. That amount was $1,803.70 gross for 43.25 hours work during the fortnight. It follows that in the period from 8 to 18 March 2021 Ms Ramos is likely to earn $1,415.90 (1.57 weeks x $901.85/week = $1,415.90)

[51] Accordingly, I find that the amount of any remuneration earned by Ms Ramos from employment or other work during the period between the dismissal and the making of the order for compensation is $10,831.12 ($9,415.22 + $1,415.90 = $10,831.12) (s 392(2)(e) of the Act).

[52] As to the amount of any income reasonably likely to be earned by Ms Ramos during the period between the making of the order for compensation (18 March 2021) and the end of the expected period of further employment (2 April 2021), I find that Ms Ramos is likely to remain in employment with her current employer and is likely to continue to receive average gross weekly remuneration of $901.85. I appreciate that Ms Ramos’s current employment is on a casual basis and her earnings may fluctuate from one week to the next, but on the basis of the earnings Ms Ramos received in the fortnight ending on 7 March 2021 and her expectation of ongoing hours, my assessment is that she is likely to continue to receive the same level of average earnings until 2 April 2021 as she did from 22 February 2021 until 7 March 2021. It follows that the amount of any income reasonably likely to be earned by Ms Ramos during the period between the making of the order for compensation (18 March 2021) and the end of the expected period of further employment (2 April 2021) is $2,065.23 (2.29 weeks x $901.85 = $2,065.23) (s 392(2)(f) of the Act).

[53] Thus, my view is that $3,259.30 is the gross amount of additional remuneration which Ms Ramos would likely have earned had she not been dismissed by Coast Community and instead continued to be employed by Coast Community until 2 April 2021 ($16,155.65 – ($10,831.12 + $2,065.23) = $3,259.30). This calculation is intended to put Ms Ramos in the position she would have been in but for the termination of her employment. 25

Viability (s 392(2)(a))

[54] No evidence was adduced on behalf of the Coast Community, and no submission was made, that any particular amount of compensation would affect the viability of Coast Community’s enterprise.

[55] My view is that no adjustment will be made on this account.

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

[56] My view is that Ms Ramos’s period of service with Coast Community (about 11 months) does not justify any adjustment to the amount of compensation.

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

[57] The evidence establishes that Ms Ramos made significant efforts to obtain alternative employment following her dismissal on 2 December 2020. In particular, Ms Ramos applied for dozens of jobs online and made direct approaches to employers. The extent of Ms Ramos’s efforts in this regard are supported by the fact that she obtained employment with two employers in the first few months of 2021.

[58] In all the circumstances, my view is that Ms Ramos acted reasonably to mitigate the loss suffered by her because of the dismissal and I do not consider it appropriate to reduce the compensation on this account.

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

[59] It is necessary to consider whether to discount the remaining amount ($3,259.30) for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which Ms Ramos was subject might have brought about some change in earning capacity or earnings. 26 Positive considerations which might have resulted in advancement and increased earnings are also taken into account.

[60] 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. 27

[61] The prospective period in this case is short - from 19 March 2021 until 2 April 2021. Because Ms Ramos is employed on a casual basis, her earnings in that period may well fluctuate up or down. In addition, there is the prospect that she may obtain permanent employment with her current employer or another employer in this period and her earnings may increase. Alternatively, Ms Ramos may lose capacity to work or lose her current casual employment and take some time to obtain other work. In all the circumstances and having regard to factors which weigh in each direction, my view is that it is not appropriate to discount or increase the figure of $3,259.30 for contingencies.

[62] Save for the matters referred to in this decision, my view is that 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.

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

Application of the Sprigg formula

[64] In my view, this is a case in which the application of the Sprigg formula yields an amount ($3,259.30) that is clearly inadequate. 28 The order for the payment of compensation must be appropriate having regard to all the circumstances of the case.29

[65] Ms Ramos was dismissed in circumstances where she was stood down for a period of almost seven weeks, during which time she suffered a significant loss because she was only paid for her minimum weekly hours ($455.25/week), compared to her gross average weekly earnings of $942.57 30 per week in the period from 20 April 2020 until 9 August 2020. Notwithstanding her attempts to find out the reasons for being stood down, no allegations were put to Ms Ramos and she was given no chance to respond to any allegations or concerns during the almost seven week suspension period. Ms Ramos was then summarily dismissed for conduct which I have found on the material before the Commission did not occur. Further, I have found that at least part of the reason for Ms Ramos’s dismissal was her legitimate action in seeking payment of her unpaid superannuation and provision of a Pay As You Go payment summary. Ms Ramos was not afforded any procedural fairness prior to her dismissal. There is no suggestion in the material before the Commission that Ms Ramos had been subjected to any disciplinary action during her almost 12 month period of employment with Coast Community. Following her dismissal, Ms Ramos made efforts to find alternative employment and has worked in two different jobs to mitigate her loss.

[66] Having regard to all the circumstances of the case, I consider that the application of the Sprigg formula yields an amount ($3,259.30) that is clearly inadequate. My view is that an appropriate amount of compensation having regard to all the circumstances of the case is $7,540.56, which is eight weeks’ pay at Ms Ramos’s gross average weekly earnings of $942.57 per week in the period from 20 April 2020 until 9 August 2020.

Misconduct (s 392(3))

[67] Section 392(3) of the Act provides that if the Commission is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the Commission must reduce the amount it would otherwise order under s 392(1) of the Act by an appropriate amount on account of the misconduct.

[68] I have found that Ms Ramos did not engage in any misconduct. There is no basis to reduce the amount of compensation to be ordered in Ms Ramos’s favour pursuant to s 392(3) of the Act.

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

[69] I note that in accordance with s 392(4) of the Act, the amount of compensation ($7,540.56) does not include a component for shock, humiliation or distress.

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

[70] The amount of $7,540.56 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 Ms Ramos was entitled in her employment with the Coast Community during the 26 weeks immediately before her dismissal. In those circumstances, my view is that there is no basis to reduce the amount of $7,540.56 by reason of s 392(5) of the Act.

Instalments (s 393)

[71] No application has been made by Coast Community for any amount of compensation awarded to be paid in the form of instalments.

Conclusion on compensation

[72] For the reasons I have given, my view is that a remedy of compensation in the sum of $7,540.56 (less taxation as required by law) in favour of Ms Ramos is appropriate in the circumstances of this case. I will issue an order [PR727894] to that effect.

DEPUTY PRESIDENT

Appearances:

Ms L Ramos, on behalf of herself

Hearing details:

2021.
Newcastle:
15 March.

Printed by authority of the Commonwealth Government Printer

<PR727893>

 1   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-8

 2   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373

 3   Ibid

 4   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685

5 Ibid

 6   Ibid at 684

 7   Webb v RMIT University[2011] FWAFB 8336 (Drake SDP, Hamilton DP, Jones C, 8 December 2011) at [6]

 8   Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport (2000) 98 IR 137 at [62]

 9   Ibid

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

 11   $1,961.48 (20/4020-3/5/20) + $1,959.29 (3/5/20-16/5/20) + $1,900* (17/5/20-30/5/20) + $1,780* (31/5/20-14/6/20) + $1,633.65 (15/6/20-28/6/20) + $2,209.25 (29/6/20-12/7/20) + $1,317.94 (13/7/20-26/7/20) + $2,319.51 (27/7/20-9/8/20) = $15,081.12 (total gross wages) / 8 = $1,885.14 (average gross wages per fortnight) / 2 = $942.57 (average gross wages per week) [* Note – Ms Ramos did not have her payslips for these two periods. She did, however, produce her bank records which showed that she received $1,577.50 net for the period 17/5/20-30/5/20 and $1,492.30 net for the period 31/5/20-14/6/20. Using other payslips provided to Ms Ramos by Coast Community where she received similar net wages, I have estimated with a fair degree of accuracy the gross wages she received in these two pay periods. For example, in the pay period from 10/8/20-23/8/20 Ms Ramos was paid $1,496.30 net from $1,788.30 gross earnings. In the pay period from 31/5/20-14/6/20 Ms Ramos received a net payment of $1,492.30. I have therefore estimated that her gross earnings for the fortnight were approximately $1,780]

 12   Coast Community’s pay period immediately after the commencement of the suspension on 16 October 2020 was from 19 October 2020 until 1 November 2020

 13   Payslip for the period 13/7/20 to 26/7/20 – states “Additional included for JobKeepers”

 14   Ex A11

 15   Ex A15

 16   Ex A4

 17   Exhibit A14

 18   Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]

 19 (1998) 88 IR 21

 20   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

 21   Double N Equipment Hire Pty Ltd v Humphries[2016] FWCFB 7206 at [16]-[17]

 22   See paragraph [35] above

 23   See paragraph [34] above

 24   Ex A12 & Ex A13

 25   Bowden at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35]

 26   Ellawala v Australian Postal Corporation Print S5109 at [36]

 27   Enhance Systems Pty Ltd v Cox PR910779 at [39]

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

 29   McCulloch v Calvary Health Care Adelaide[2015] FWCFB 873 at [29]

 30   See paragraph [35] above