Mark Harby v Western Australian Shed Commercial Pty Ltd T/A WABG
[2019] FWC 7827
•25 NOVEMBER 2019
| [2019] FWC 7827 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mark Harby
v
Western Australian Shed Commercial Pty Ltd T/A WABG
(U2019/8006)
DEPUTY PRESIDENT BEAUMONT | PERTH, 25 NOVEMBER 2019 |
Application for an unfair dismissal remedy.
[1] Mr Mark Harby,a former builder with Western Australian Shed Commercial Pty Ltd (WA Shed Commercial), made an application to the Fair Work Commission for a remedy in respect of his dismissal, under s 394 of the Fair Work Act 2009 (Cth) (the Act). WA Shed Commercial was non-responsive to the Commission’s correspondence, non-compliant with directions and failed to appear for a listed mention. This history is detailed at length in the decision. However, in summary it culminated in a direction to WA Shed Commercial that in circumstances where none of its materials were received by a specified date, the Commission would proceed to determine the matter on the papers in light of Mr Harby’s consent to do so.
[2] Subsequent to that direction, no materials were received from WA Shed Commercial. Therefore, the only materials before me are those provided by Mr Harby, in the form of a witness statement, and documents and submissions. This in turn means there was an absence of a contradictor, a factor I have duly considered when arriving at my findings.
[3] From Mr Harby’s Form F2 and his witness statement, 1 it is apparent that WA Shed Commercial had communicated to Mr Harby that his position had been made redundant.
[4] The Act sets out that a person has been unfairly dismissed if the Commission is satisfied that, amongst other matters, the dismissal was not a case of genuine redundancy. 2 A dismissal is by way of genuine redundancy, if:
a) the person’s 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; 3 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; 4 and
c) it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or that of an enterprise of an associated entity. 5
[5] Although there was no contradictor, it remains that I am satisfied the evidence overall supports a conclusion that there was not a genuine redundancy.
[6] Thereafter, I have taken into account each of the matters specified in s 387 of the Act. A valid reason for the dismissal in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. The consideration raised by s 387(a) relates to the capacity or conduct of the dismissed employee. However, there is no evidence before me to suggest that the reason for Mr Harby’s dismissal was so related.
[7] Another factor to take into account is whether there was a redundancy of Mr Harby’s position, which in turn gave rise to a valid reason for dismissal (under the auspices of s 387(h)). I have found that not to be the case, and having considered the totality of the evidence in respect of the other factors in s 387 of the Act, I have concluded that Mr Harby’s dismissal was harsh, unjust and unreasonable.
[8] In the circumstances, I conclude reinstatement is not appropriate and order that WA Shed Commercial pay to Mr Harby an amount of $4,211.00. In determining the amount for the purpose of the order I have taken into account all of the circumstances of the case including the criteria set out in s 392(2) of the Act. My reasons follow.
Background concerning the progress of the application
[9] The application was lodged on 20 July 2019. On 24 July 2019, a notice of listing was issued for a conciliation conference to be held on 20 August 2019. That listing was cancelled and relisted for 12 September 2019. WA Shed Commercial did not appear. Notwithstanding an instruction from the Unfair Dismissal Case Management Team on 13 September 2019 for WA Shed Commercial to file an employer response, no employer response was received.
[10] Email correspondence shows that the abovementioned instruction of 13 September 2019 was directed to Mr Gewwi Li, Director of WA Shed Commercial. However, while the body of the email addressed Mr Li, the email was sent to the email address of Mr Henry Chen of Henry and Associates Pty Ltd. Mr Chen was purported to be the tax agent of WA Shed Commercial. On receipt of the email dated 13 September 2019 from the Unfair Dismissal Case Management Team, Mr Chen forwarded the email, presumedly to the Director of WA Shed Commercial. That forwarded email read: ‘MR LI PLEASE SEE THE LETTER FOM [sic] FWC AND URGENTLY RESPOND.’
[11] On 20 September 2019, the Commission issued directions for the filing of an outline of argument, statements of evidence and document list. WA Shed Commercial’s documentary materials were due to be filed by 28 October 2019. Again, correspondence was sent to Mr Chen who then sent an email to Mr Li, dated 20 September 2019 stating ‘MR LI PLEASE URGENTY DEAL THE LETTER FROM FWC.’ Similarly, correspondence was sent from the Unfair Dismissal Case Management Team on 7 October 2019 and again Mr Chen forwarded the correspondence to Mr Li.
[12] By email dated 28 October 2019, the Unfair Dismissal Case Management Team alerted Mr Li to his non-compliance with the directions issued on 20 September 2019. The Team member observed that documentary materials were due on that day but had not been received. Mr Li was provided with the opportunity to advise the Commission by 29 October 2019, when he intended to file his submissions.
[13] By 30 October 2019, the matter had been allocated to my Chambers. On that day an email was sent to Mr Harby, Mr Chen and the email address that Mr Chen appeared to be using for Mr Li. The email addressed, amongst other matters, the following:
…Chambers noted that the Respondent has not filed any materials by the 28 October 2019 deadline.
Chambers has attempted to call the Respondent on: 08 9493 4934, as provided by the Applicant. The number appears to be disconnected. Chambers has also undertaken an ABN search and web search and found 08 9459 9655 as an alternative number; this number is also disconnected. An appropriate contact number needs to be provided for the mention on Monday, 4 November 2019….
[14] Before the mention on 4 November 2019, Chambers again emailed Mr Harby, Mr Chen and the email address that appeared to have been used by Mr Chen for Mr Li, stating that the mention was listed for 0930 hrs and a contact number had not yet been provided for WA Shed Commercial.
[15] A representative of WA Shed Commercial did not present for the mention on 4 November 2019. Chambers sent an email to Mr Chen, Mr Li and Mr Harby on 4 November 2019. The email directed WA Shed Commercial to address its non-compliance with directions and its failure to attend the mention. Further, WA Shed Commercial was provided with another opportunity to provide documentary materials and was notified that if no materials were provided then the matter would be determined on the papers. Mr Harby had agreed to such course at the mention on 4 November 2019. Although Mr Chen once again drew Chambers’ correspondence to Mr Li’s attention – ‘DEAR MR LI PLEASE DEAL IT ASAP,’ there was no reply.
[16] Unsurprisingly, the only documentary materials before me are those provided by Mr Harby. In light of this, I have surmised that there are no facts in dispute and am therefore not obliged to conduct a conference or hold a hearing in relation to the matter. 6 Mr Harby was amenable to this approach.
Background regarding the purported redundancy
[17] Mr Harby gave evidence that he was employed as a registered builder at WA Shed Commercial and commenced employment on a full-time basis on 26 January 2016. 7 Attached to Mr Harby’s witness statement was an unsigned employment contracted dated 17 December 2018. The employment contract detailed that Mr Harby’s position was that of ‘Registered Building Contractor Supervising Builder’ and he was covered by one of four modern awards. The modern awards referred to were the Building and Construction General On-site Award 2010,8 the Manufacturing and Associated Industries and Occupations Award 2010,9 the Professional Employees Award 201010 and the Clerks – Private Sector Award 2010.11 None were identified as the award that covered Mr Harby.
[18] Under the contract, Mr Harby was to receive an hourly rate of pay of $50.60 (exclusive of superannuation) and his hours of work were 38 hours per week plus any additional hours reasonably necessary to fulfil the requirements of his duties.
[19] Mr Harby’s evidence was that on the morning of 1 July 2019 he was informed that his position had been made redundant and that his employment was being terminated. 12 Later on that same day Mr Harby received a letter, of 1 July 2019, confirming the redundancy of his position and setting out his entitlements. In addition, the redundancy letter referred to a teleconference that had purportedly taken place on 4 June 2019, in which the following was said to have been discussed:
At this teleconference the Company again provided an overview of the current position, summarised the matter to date, and sought your further comments and proposals in relation to this matter.
The Company also confirmed that, having reviewed other areas within the business, there are currently no vacancies or opportunities for redeployment within the business.
[20] The redundancy letter was signed by ‘Mr Gewwi Li, Director’.
[21] Mr Harby stated that the redundancy letter, which had been signed by WA Shed Commercial’s Director, included a false and misleading statement. He went on to explain that he was not invited to a teleconference on 4 June 2019. 13 Mr Harby stated that on 4 June 2019, he was informed by his colleague that there had been a discussion with WA Shed Commercial’s Director, and the Director had wanted Mr Harby’s colleague to pass on a message.14 That message was that the Director wanted Mr Harby to come off his current employment contract and enter into a company profit sharing arrangement with the potential forthcoming job.15 Mr Harby stated he was told that he would not receive a fortnightly wage but would receive company profit instead.16 Mr Harby stated that he informed his colleague that this was not something that he wished to do and thanked her for passing on the message. The matter was never discussed in detail or at a later date.17 Mr Harby stated that there was no discussion of any kind regarding redundancy or redeployment.18
Was Mr Harby’s dismissal by way of genuine redundancy?
[22] It appears uncontroversial that Mr Harby was dismissed and one can only accept that WA Shed Commercial was not a small business employer in the absence of any evidence to the contrary. 19 As Mr Harby’s dismissal appears to be by way of redundancy, s 396 of the Act would seem relevant, albeit WA Shed Commercial has not advanced a jurisdictional objection on this ground.
The relevant law
[23] Section 396 provides that before considering the merits of an application for an unfair dismissal remedy order, the Commission must determine some other initial matters. Section 396 is as follows:
396 Initial matters to be considered before merits
The FWC must decide the following matters relation to an application for an order under Division 4 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.
[24] The effect of s 396 is that if a dismissal was a case of genuine redundancy, the Commission need not consider whether it is satisfied the dismissal was harsh, unjust or unreasonable.
[25] It is not in dispute that Mr Harby made his application for an unfair dismissal remedy within the period required in s 394(2) and that he is a person protected from unfair dismissal with respect to his income and award coverage.
[26] The term ‘genuine redundancy’ is defined in s 389 of the Act in the following terms:
389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s 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.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.
[27] Section 385(d) provides that if I am satisfied that the dismissal was a genuine redundancy then it cannot be an unfair dismissal. There are various factors to consider when arriving at a decision on whether the redundancy is a genuine redundancy. However importantly, it is the employer who bears the evidential burden concerning the objection.
Consideration
[28] WA Shed Commercial bears the onus of proving on the balance of probabilities that the redundancy was due to changes in operational requirements. 20 If it is wrong to describe there being an onus of proof on WA Shed Commercial, which I do not consider to be the case, it remains that there must, in any event, be material before me which satisfies me that there were genuine operational reasons for WA Shed Commercial no longer requiring Mr Harby’s job to be performed by anyone.
[29] While the redundancy letter of 1 July 2019 speaks of the ‘[C]ompany’s decision to restructure its operations’ to ‘ensure the future success of the business,’ there is no other evidence before me apart from the assertion in the letter.
[30] It is unnecessary to labour the point further. WA Shed Commercial has not presented any documentary or other evidence to this Commission in response to Mr Harby’s application. In these circumstances, the only conclusion open to me is that Mr Harby’s dismissal was not a case of genuine redundancy. Therefore, I turn to consider whether his dismissal was unfair.
Was the dismissal harsh, unjust or unreasonable?
[31] Mr Harby’s dismissal will be unfair if it is found to be harsh, unjust or unreasonable.
[32] The Act relevantly provides as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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.
[33] Section 387 of the Act contemplates that the Commission must conduct an overall assessment as to the nature of the dismissal. In so doing, the Act sets out a number of considerations that must be taken into account.
[34] It is convenient therefore to use the various provisions of s 387, with reference to the relevant circumstances, to outline my consideration of the matter.
Was there a valid reason for Mr Harby’s dismissal?
[35] When determining if a dismissal is unfair, the Commission must take into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct. 21 Valid in this context is generally considered to be whether there was a sound, defensible or well founded reason for the dismissal.
[36] The consideration raised by s 387(a) of the Act relates to the capacity or conduct of the dismissed employee. However, in this case, based on the evidence before me, the purported reason for dismissal was redundancy. The reason does not relate to Mr Harby’s capacity or conduct as contemplated by s 387(a) of the Act, and therefore the reason is not valid, at least as envisaged by this consideration. 22
Was Mr Harby notified of the reason for dismissal?
[37] The notification of the reasons for dismissal concerns the notification of the ‘valid reason’ as contemplated by s 387(a) of the Act. 23 That notification must be done before the dismissal.24
[38] Mr Harby was notified of a reason for his dismissal, but the reason does not relate to any valid reason (within the meaning of s 387(a)) and was not provided in advance of the dismissal.
Was Mr Harby given an opportunity to respond to any reason related to his capacity or conduct?
[39] This does not arise here for reasons outlined above. Nevertheless, Mr Harby’s evidence is that he was not provided with an opportunity to respond.
Was there an unreasonable refusal by WA Shed Commercial to allow Mr Harby a support person?
[40] There was no evidence before me to suggest that such refusal occurred.
Was there unsatisfactory performance and if so, was a warning provided?
[41] This does not arise here for reasons outlined above.
Was the size of WA Shed Commercial likely to impact on the procedures followed in effecting the dismissal? And, was there an absence of dedicated human resource management specialists or expertise which would likely impact on the procedures followed in effecting the dismissal?
[42] Given the dearth of evidence, I am unable to ascertain whether these factors had any bearing on the procedures followed.
Are there other matters considered to be relevant?
[43] In cases where the respondent employer has failed with its jurisdictional objection that the dismissal was a genuine redundancy, an argument may be advanced that nevertheless there was a sound, objective and well-founded reason for dismissal – a redundancy.
[44] In UES (Int’l) Pty Ltd v Harvey 25 (UES) a Full Bench of the Commission dealt with circumstances where the reason for dismissal was that the employer no longer required the applicant’s job to be performed by anyone because of the operational requirements of its enterprise, and it was not reasonable to redeploy the applicant. Whilst the Full Bench in UES acknowledged that s 387(a) concerned only if there was a valid reason related to a person’s capacity or conduct, it was nevertheless the case that with respect to s 387(h) of the Act, such valid reasons concerning redundancy were matters relevant to their consideration as to whether the applicant’s dismissal was harsh, unjust or unreasonable.26 The Full Bench considered the matters as telling against a conclusion that the dismissal was harsh, unjust or unreasonable.
[45] However, with the exception of the redundancy letter and what Mr Harby reports he was informed on 1 July 2019, there is no evidence before me concerning the reasons for Mr Harby’s dismissal. I therefore cannot find, based on that evidence alone, that there were sound, defensible and well-founded reasons for Mr Harby’s dismissal due to the operational requirements of WA Shed Commercial. Further, I cannot make a finding as to whether or not it would have been reasonable to redeploy Mr Harby or to have consulted with Mr Harby about the redundancy of his position. To do so, would be to assume that the redundancy letter and Mr Harby’s report of what he was informed, is able to be relied upon to prove there was in fact a redundancy of his position. I am not content on the evidence before me to draw that conclusion.
Conclusion
[46] Having taken into account all of the factors in s 387 of the Act, unsurprisingly, I am not satisfied that WA Shed Commercial had a valid reason for Mr Harby’s dismissal. Further, I have concluded that his dismissal was unjust, unreasonable, and harsh. I turn now to address whether an order with respect to remedy is warranted in the circumstances.
Remedy
The relevant law
[47] The Act provides the following with respect to remedy:
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.
Note: Division 5 deals with procedural matters such as applications for remedies.
[48] Subsection 390(3) of the Act underscores the primacy of reinstatement as a remedy for an unfair dismissal.
[49] A decision of the Commission to order a person’s reinstatement is a discretionary decision, 27 exercisable if the Commission is satisfied the person was relevantly protected, the person was unfairly dismissed and the person has made a s 394 application.28
[50] A Commission decision to order the payment of compensation to a person is also a discretionary decision, but is only exercisable if, amongst other things, the Commission is satisfied reinstatement of the person is inappropriate and the FWC considers a compensation order is appropriate in all the circumstances of the case. 29
[51] Section 392 of the Act sets out the criteria to which regard must be had in determining any amount of compensation ordered.
[52] In determining the amount of compensation to be ordered, the Act provides:
392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(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.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.
Consideration
Reinstatement
[53] Mr Harby does not seek reinstatement. This is understandable given WA Shed Commercial’s apparent aversion to address the application, comply with directions, and present for a conference and a mention. An ‘accountable employer’ is not a term that comes to mind when describing the conduct of this company when dealing with this application.
[54] I am satisfied there would be little prospect of re-establishing a productive and cooperative relationship between Mr Harby and WA Shed Commercial. This is particularly the case where there does not appear to be a responsive point for the company.
Compensation
[55] Derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket 30(Sprigg), the ‘Sprigg Formula’ is the well accepted approach for assessing the amount of compensation under s 392(2) of the Act.31 The approach has described in the following way:
[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:
‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’
[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’... 32
[56] In Haigh v Bradken Resources, 33 the Full Bench reaffirmed the principles set out within Sprigg, and in particular the steps needed to be taken in assessing compensation. The first of those steps is to estimate the amount the employee would have received, or would have been likely to receive if the employment had not been terminated; the second step being to deduct moneys earned since termination; the third being to make deductions for contingencies; fourth, to calculate any impact of taxation; and fifth, to apply the legislative cap.34
[57] The Full Bench in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Alan Humphries 35 stated:
The identification of this starting point amount ‘necessarily involves assessments as to future events that will often be problematic’ 36. Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.
[58] The notion of ‘taking into account’ a matter (such as those described in s 392 of the Act) connotes a genuine consideration of the relevant provision and the apportionment of the appropriate weight in the circumstances. 37 In Construction, Forestry, Mining and Energy Union v Hamberger and Another,38 Katzmann J pointed out that ‘[t]o take a matter into account means to evaluate it and give it due weight’39 and that ‘mere advertence will not be enough.’40
Remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed
[59] Mr Harby gave evidence that his weekly wage was $1922.80 (gross) a week. There is no evidence before me to dispute that this is not the case.
[60] The question of the anticipated period of employment is a particularly difficult issue in this matter. The purported reason for dismissal is redundancy. Mr Harby’s evidence is that he was told on the morning of 1 July 2019 that his position was being made redundant and the redundancy letter similarly gives that reason for dismissal. However, my observations made at paragraph [46], are equally pertinent here. There is no evidence before me to support the contention that WA Shed Commercial had embarked on a restructure to ensure the future success of its business and this necessarily involved a redundancy of Mr Harby’s position.
[61] I have had regard to the evidence. I am not satisfied that there was a genuine redundancy, a redundancy, that performance issues were percolating, or that Mr Harby’s conduct had given rise to his dismissal. This renders the ascertainment of anticipated employment period near unworkable. However, there must have been a reason why Mr Harby’s employment came to an end, and as tenuous as it is to do so, I can only presume that redundancy may have been the reason, although not a genuine redundancy.
[62] Mr Harby submits that there was no consultation or meaningful discussion regarding his dismissal before it took effect, and that WA Shed Commercial had not complied with its obligation under the relevant modern award to consult him. Preceding on that basis, and observing that Mr Harby may well have been covered by one of the four modern awards cited in his employment contract, if WA Shed Commercial had consulted Mr Harby about the redundancy in accordance with the relevant modern award, one may deduce that such consultation would not have taken longer than two weeks or yielded a result other than his dismissal. 41 In such circumstances, I have determined that the anticipated period of employment was two weeks.
The effect of the order on the viability of the employer’s enterprise
[63] The effect of the order on the viability of WA Shed Commercial’s enterprise is unable to be assessed because no evidence has been given regarding this factor.
Length of the person’s service with the employer
[64] Mr Harby had been in the employment for the period of 27 January 2016 until 1 July 2019, some three and a half years. This is a length of service that lends support to the making of an order for compensation.
The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal
[65] Mr Harby gave evidence that he had applied for several jobs with no success. There is no reason to disbelieve him and his evidence is uncontested. It is apparent that there have been efforts undertaken to mitigate the loss Mr Harby has suffered. Given the circumstances of this case I am not minded to reduce the compensatory amount due to a lack of effort on Mr Harby’s behalf to mitigate his losses.
The amount of remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
[66] There is no evidence before me to show that Mr Hardy has been successful in securing any employment. I therefore do not consider it necessary or appropriate to reduce the compensatory amount.
Any amount of income reasonably likely to be earned during the period between the making of the order and the actual compensation
[67] I am satisfied that Mr Harby has been unable to secure employment although he stated he had been actively looking for jobs. There is no reasonable expectation that Mr Harby may obtain income of any kind between the making of the order of compensation and the actual compensation.
Misconduct and shock, distress or humiliation
[68] I do not consider there has been any misconduct which would require me to reduce the amount of compensation. I do not include any component by way of compensation for shock, distress or humiliation caused by the manner of the dismissal.
Compensatory cap
[69] The amount of compensation the Commission may order is capped. If the appropriate quantum of compensation initially assessed exceeds that cap then the Commission must reduce the amount to the amount of the cap.
[70] The Act stipulates that the compensation cap is the lesser of:
• the amount of remuneration received by the person, or that he or she was entitled to receive (whichever is higher) in the 26 weeks before dismissal;
• half the amount of the high income threshold immediately before dismissal. 42
[71] The high income threshold is defined in s 333 of the Act as an amount prescribed by, or worked out in the manner prescribed by, the Regulations. Regulation 2.13 sets out the manner in which the high income threshold is to be worked out. The steps in Regulation 2.13(3), particularly Step 1 and Step 2, refer to ‘ordinary time earnings’. The Act defines ‘earnings’ such that they exclude contributions to superannuation fund. 43
[72] Under s 392(5) of the Act, I am obliged to determine the amount worked out under s 392(6) of the Act. The amount is calculated by reference to the ‘total amount of remuneration’ received by the person or to which the person was entitled (whichever is higher) for any period of employment with the employer during the 26 weeks immediately before dismissal. ‘Remuneration’ is not defined in the Act.
[73] Both ss 392(6) and 392(2) of the Act refer to ‘remuneration’ under Part 3-2.
[74] The meaning of ‘remuneration’ has been considered in various iterations of what is now the Act and with regard to differing legislative provisions. What appears clear from the decisions is that the term ‘remuneration’ has adopted a consistent meaning whereby superannuation is included.
[75] For the purpose of s 392(5) of the Act, I am satisfied the amount is $54,742.12. I have considered that under the Applicant’s employment contract he was entitled to superannuation contributions at 9.5%.
Any other matter that the Commission considers relevant
[76] I have considered the circumstances of the case and there are no further matters that I consider relevant when arriving at the compensatory amount.
[77] However, I observe that Mr Harby contends that he has not received payment for outstanding wages (six weeks) and entitlements including payment in lieu of notice and a redundancy payment. As observed by the Deputy President in Ms Jenny Chau v Eleano Staff Pty Ltd T/A Emporium Terry White ChemistOne 44(Ms Chau)a ‘consequence of the employer choosing not to attend the proceedings or file comprehensive materials pursuant to directions is that there is no rebuttal of these most serious allegations on the public record.’
[78] In the decision of Ms Chau, the Deputy President made the following observation, which appears on point regarding this matter:
claims in relation to unpaid wages and entitlements are not ones that can be entertained by the Fair Work Commission in an unfair dismissal application. They require the exercise of judicial power, and must be brought in a court. Many cases come before the Commission which involve elements that must be judicially determined. Ideally there would be a mechanism, within constitutional limitations, that would allow all of the relevant employment allegations to be determined at the same time, or consecutively but immediately. As it is, however, claims for unpaid wages and entitlements must be separately pursued in a court. 45
CONCLUSION AND ORDERS
[79] After consideration of the foregoing issues, I find that Mr Harby was dismissed and that it was unfair within the meaning of the Act.
[80] Reinstatement is not an appropriate remedy in this case and therefore I find that compensation is appropriate. The calculation for compensation is set out in the following table.
Compensation | Calculation | Gross | Total Gross Amount (inclusive superannuation) |
Anticipated employment period | 2 weeks x $1922.80 = $3,845.60 | $3,845.60 | $4,211.00 |
Notice period | $0.00 | $0.00 | $0.00 |
Deduct monies for misconduct | $0.00 | $0.00 | $0.00 |
Deduct monies earned since termination | $0.00 | $0.00 | $0.00 |
Deduction for contingencies | 0% | $0.00 | $0.00 |
Calculate any impact of taxation | To be taxed according to law | ||
Apply the compensation cap | Last six months amount of remuneration received by Mr Harby $49,992.80 | Cap applied | |
TOTAL | $4,211.00 |
[81] For the reasons I have given earlier, and on the basis of the calculations completed, I order that WA Shed Commercial pay to Mr Harby an amount of $4,211.00. In determining the amount for the purpose of the order I have taken into account all of the circumstances of the case including the criteria set out in s 392(2) of the Act.
[82] The total amount does not exceed the compensation cap applicable at the time of dismissal. The amount ordered to be paid must be subject to ordinary taxation.
[83] The compensation is to be paid within 14 days from the date of the accompanying order 46 (as issued simultaneously with this decision).
DEPUTY PRESIDENT
On the papers
Printed by authority of the Commonwealth Government Printer
<PR714333>
1 Witness Statement of Mark Damien Harby (Harby Statement).
2 Fair Work Act (2009) (Cth) s 385(d).
3 Fair Work Act (2009) (Cth) s 389(1)(a).
4 Fair Work Act (2009) (Cth) s 389(1)(b).
5 Fair Work Act (2009) (Cth) s 389(2).
6 Fair Work Act 2009 (Cth) s 397.
7 Harby Statement.
8 MA000020.
9 MA000010.
10 MA000065.
11 MA000002.
12 Harby Statement.
13 Harby Statement.
14 Harby Statement.
15 Harby Statement.
16 Harby Statement.
17 Harby Statement.
18 Harby Statement.
19 Fair Work Act 2009 (Cth) s 385.
20 Kieselbach v Amity Group Pty Ltd AIRC 2006 PR973864.
21 Fair Work Act 2009 (Cth) s 387(a).
22 UES (Int’l) Pty Ltd v Harvey[2012] FWAFB 5241 [27].
23 Chubb Security Australia Pty Ltd v Thomas, 2 February 2000, Print S2679 [41].
24 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 [73].
25 [2012] FWAFB 5241[47].
26 [2012] FWAFB 5241[47].
27 Ellawala v Australian Postal Corporation, Print S5109 [24].
28 Gloria Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey [2013] FWCFB 431 [15].
29 Ibid [16].
30 Print R0235, (1998) 88 IR 21.
31 Gloria Bowden v Ottrey Homes and Cobram and District Retirement Villages Inc (t/as Ottrey Lodge) [2013] FWCFB 431.
32 Ellawala v Australian Postal Corporation Print S5109 [34].
33 [2014] FWCFB 236.
34 Ibid [10].
35 [2016] FWCFB 7206 [17].
36 Smith, Arthur and Kimball, Brett v Moore Paragon Australia Ltd PR942856 [32].
37 Ms Diane Lewis v Glendale RV Syndication Pty Ltd T/A Glendale Care Bundaberg [2014] FWC 1086.
38 (2011) 195 FCR 74.
39 Ibid [103].
40 Ibid.
41 UES (Int’l) Pty Ltd v Leevan Harvey[2012] FWAFB 5241.
42 Subsections 392(5) and (6) of the Act.
43 Subsections 332(2)(c) and (4) of the Act; Craig Ablett v Gemco Rail Pty Ltd [2010] FWA 8124.
44 [2017] FWC 6147 [26].
45 [2017] FWC 6147 [27].
46 PR714515.
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