Luc Dang v Multisteps Pty Ltd

[2015] FWC 7291

[2015] FWC 7291

FAIR WORK COMMISSION

FURTHER DECISION IN REGARD

TO REMEDY

Fair Work Act 2009
s.394—Unfair dismissal

Luc Dang
v
Multisteps Pty Ltd
(U2015/4506)

COMMISSIONER CRIBB MELBOURNE, 22 OCTOBER 2015

Application for relief from unfair dismissal - further decision in regard to remedy - compensation in lieu of reinstatement.

[1] This decision concerns determination of the remedy to be ordered by the Fair Work Commission (Commission), pursuant to section 392 of the Fair Work Act 2009 (the Act). It follows the decision issued, in Transcript on 17 September 2015, in which the Commission found that Mr Luc Dang had been unfairly dismissed by Multisteps Pty Ltd (Multisteps, the company). 1

[2] However, the Commission was unable to determine the appropriate remedy due to there being insufficient material before the Commission at that time and so reserved its decision in relation to remedy. 2 The company was requested to advise the Commission and Mr Dang its views about reinstatement and Mr Dang was provided with the opportunity to respond to the company’s views. In relation to an amount of compensation in lieu of reinstatement, Mr Dang was required to provide information, with supporting documentation, about the amount of money that he has earned since his dismissal.3

1. Section 390

[3] Section 390 of the Act sets out when the FWC may order a remedy for unfair dismissal as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) The FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) The FWC is satisfied that reinstatement of the person is inappropriate; and

(b) The FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[4] During the hearing, the Commission was satisfied that the requirements of section 390(1) and (2) had been met. 4 However, the Commission was unable to determine whether or not it was satisfied in relation to section 390(3)(a) and (b).

(a) Is reinstatement appropriate? - s.390(3)(a)

[5] The company stated that reinstatement of Mr Dang is inappropriate as Multisteps no longer has a job suitable for Mr Dang or anyone who cannot operate a high reach forklift. 5 Mr Dang, when asked during the hearing if he wanted to be reinstated, responded by asking for the Commission to assist in making that decision and for an explanation as to his entitlements if he was reinstated and if he was not reinstated.6 In an email on 20 September 2015, Mr Dang appeared to be seeking his job back. However, in subsequent emails, Mr Dang seemed to be pursuing payment of compensation.7

[6] On the basis of the material before me, and in all of the circumstances, I am satisfied that reinstatement of Mr Dang is inappropriate. The company was strongly of the view that Mr Dang should not be reinstated for the reasons given for the dismissal during the hearing on 17 September 2015.

(b) Is compensation appropriate? - s.390(3)(b)

[7] Section 390(3)(b) requires that the Fair Work Commission consider it appropriate, in all of the circumstances of the case, to order compensation. Taking into account all of the circumstances of this matter, an order for payment of compensation is considered appropriate.

[8] Section 392(2) of the Act sets out the criteria for deciding the amount of compensation in all of the circumstances of the case. The criteria are:

“(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

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

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

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

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

[9] I will deal with each of the criteria in turn guided by the Full Bench decision in Haigh v Bradken Resources Pty Ltd 8(Haigh). In Haigh9, the Full Bench also referred to the Full Bench decisions which have applied the approach in Sprigg v Paul Licensed Festival Supermarket10 (Sprigg). As indicated during the hearing11 on 17 September 2015, I respectfully adopt the approach taken in Haigh.

Section 392(2)(a) - effect on the viability of the employer’s enterprise

[10] It was submitted, on behalf of the company, that its viability is unlikely to be affected as long as the compensation amount is affordable to the company. 12

[11] There is no evidentiary basis before me on which to conclude that an award of compensation would affect the viability of the employer’s enterprise.

Section 392(2)(b) - Applicant’s length of service

[12] Mr Dang’s length of service was 8 months. 13

Section 392(2)(c) - remuneration likely to have received

[13] The company contended that Mr Dang would have remained in employment for 2 weeks if not for his dismissal. This was on the basis that Mr Dang would have been dismissed due to the change in the storage system. If Multisteps had consulted with Mr Dang, two weeks would have been sufficient time to do that. 14 The Commission was referred to a number of authorities in support of this contention.15

[14] There were no submissions made by Mr Dang in relation to this criterion.

[15] Having considered all of the material before me, I have formed the view that, had Mr Dang not been dismissed, it is likely that his employment would have continued for a further 3 months. This is on the basis that this is the likely time that it would take for the company to have trained Mr Dang on the high reach forklift and then, to have undertaken a proper disciplinary process (including the issuing of warnings), in the event that Mr Dang was not competently performing those duties.

[16] This results in a provisional compensation amount of $9,750 (based on an annual salary of $39,000). 16

Section 392(2)(d) - efforts to mitigate loss

[17] Mr Dang gave evidence during the hearing about his efforts to find alternative employment. On the basis of Mr Dang’s evidence, the Commission found, at the conclusion of the hearing, that Mr Dang has made reasonable efforts to mitigate his loss. 17 This finding does not appear to have been challenged by the Respondent.18

Section 392(2)(e) - remuneration earned and income reasonably likely to be earned (section 392 (2) (f)

[18] Mr Dang provided documentary evidence that he had earned $48 when he had worked on 7 May 2015 and 8 May 2015. 19

[19] From Mr Dang’s evidence during the hearing (on 17 September 2015), it was apparent that he had been unable to obtain alternative employment.

[20] As the income earned during the period of anticipated employment (18 March 2015 - 17 June 2015) was $48, this amount will be deducted from the provisional amount of $9,750. This results in a provisional amount of $9,702.

Section 392(2)(g) - other matters

[21] Neither Mr Dang nor the company submitted that there were any other matters which the Commission should take into account. 20

Section 392(3)

[22] This section is not relevant in this matter.

Contingencies and taxation

[23] During the hearing, the Commission was unable to determine the amount to be deducted for contingencies. As the anticipated period of employment has passed, it is not proposed to make any deduction for contingencies. 21

[24] The impact of taxation has been considered and a gross amount settled on.

[25] The provisional compensation amount remains at $9,702.

Section 392(4) - shock or distress

[26] No part of the provisional compensation amount relates to any shock or distress suffered by Mr Dang.

Section 392(5) - compensation cap

[27] Since the provisional amount of compensation of $9,702 is less than the compensation cap ($19,500), there is no further deduction to be made.

Section 393 - instalments

[28] As there were no submissions that any amount of compensation should be subject to payment by instalments, no finding to this effect needs to be made.

Conclusion

[29] Accordingly, it is considered appropriate to make an order that Multisteps Pty Ltd pay $9702 (gross), less taxation as required by law, in compensation to Mr Dang in lieu of reinstatement, within 21 days of the date of this decision.

[30] An order 22 to this effect will be issued separately.

 1   Transcript PN 500

 2   Ibid PN 532 and 538

 3   Ibid PN 538 - 559

 4   Ibid PN 504

 5   Letter on behalf of the Respondent, dated 28 September 2015, at paragraph 5(1)

 6   Transcript PN 505 - 508

 7   Emails from Mr Dang dated 5 October 2015; 8 October 2015 and 18 October 2015

 8   [2014] FWCFB 236

 9   ibid at paragraphs [10]-[12]

 10 (1998) 88 IR 21

 11   Transcript PN 541

 12   Letter on behalf of the Respondent, dated 28 September 2015, at paragraph 5 (2)

 13   Transcript PN 545

 14   Letter on behalf of the Respondent, dated 28 September 2015, at paragraph 5(4)

 15   Ibid

 16   Transcript PN 519 - 520

 17   Ibid PN 546

 18   Letter on behalf of the Respondent, dated 28 September 2015, at paragraph 5(5)

 19   Email with attachments from Mr Dang dated 8 October 2015

 20   Letter on behalf of the Respondent, dated 28 September 2015, at paragraph 5(5)

 21   Transcript PN 552

 22   PR573201

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