[2017] FWC 4376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Mitchell
v
Uraidla Physio
(U2017/625)

COMMISSIONER HAMPTON

ADELAIDE, 27 OCTOBER 2017

Application for an unfair dismissal remedy – preliminary jurisdictional issue determined – applicant found to be employee – whether dismissal occurred and when – casual employee with continuous service and some expectation of ongoing employment – change to available shifts – dismissal took place within the meaning of the FW Act when advised that no further shifts would be offered – small business fair dismissal code applied but dismissal not consistent – whether dismissal harsh, unjust or unreasonable – valid reason – absence of required procedural steps which led to unfairness – dismissal unreasonable – remedy – compensation determined having regard to all relevant factors including anticipated period of employment and additional income from other employment – order made.

1. Background and case outline

[1] Mr Mark Mitchell has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by his former employer Uraidla Physio. This matter has been the subject of a jurisdictional hearing before this arm of the Commission concerning whether or not Mr Mitchell was an employee. In a decision issued on 5 July 2017, 1 (the jurisdictional decision) I found that the applicant was an employee and the jurisdictional objection raised by the respondent was dismissed.

[2] This decision deals with the merit and remedy aspects of the application and should be read in conjunction with the jurisdictional decision. I note that the substantive hearing of this application was delayed due to personal circumstances of the applicant unrelated to this matter.

[3] Much of the background to this matter is evident from the jurisdictional decision. Without detracting from the detail of that decision, the following findings remain apposite:

● Ms Schultz is the owner/operator of Uraidla Physio, a small private physiotherapy practice conducted under an arrangement whereby Uraidla Physio rents a serviced, furnished room from the Uraidla Family Practice, which is a general medical practice. 2

● In May 2014, Ms Schultz placed an advertisement in a professional magazine seeking the services of a Physiotherapist and hired Mr Mitchell as a result. There was no written contract and it was understood that both would work flexibly to undertake available sessions. In practice, this generally meant that Mr Mitchell could elect to fill the session times which were not utilised by Ms Schultz but within that constraint could fill all or only some of the sessions as he desired. 3

● It was agreed that Mr Mitchell would be a paid in the form of a percentage of his billings and that this would be 60 percent less overhead costs. In early 2016, this was increased to 70 percent of the billings. 4
● These arrangements were subject to some negotiation and at various times Ms Schultz changed or reduced her hours to assist the applicant. Mr Mitchell acknowledged that at least to some degree the hours he worked represented a choice based upon mutual circumstances. The ultimate decision on the extent of available hours rested with Ms Schultz. 5

● In general terms, between October 2014 and February 2015 Mr Mitchell worked Monday afternoons and all day Fridays. During the period between June 2015 and May 2016 Mr Mitchell generally worked Monday afternoons, school hours on Wednesdays, and all day Fridays. 6

● In the case of sickness or other commitments, Mr Mitchell could cancel or not make sessions times available through the booking system and did not need to advise or seek consent from Ms Schultz about these matters. Extended periods of absence were however generally discussed between the parties on the basis that additional sessions might be offered by the other to provide some coverage. 7
● In August 2016, the parties discussed the arrangements in the context of an indication that Mr Mitchell had been approached to work in a large Physiotherapy practice. Whilst Ms Schultz was initially happy to accommodate this, the new arrangement led to concerns about Mr Mitchell’s availability. Ms Schultz advised Mr Mitchell that she would be advertising for a third Physiotherapist and Mr Mitchell provided the names of two potential candidates. 8

● Ms Schultz subsequently appointed an additional Physiotherapist. With this additional appointment, Mr Mitchell became concerned that he was being replaced and although there were up to six sessions per week made available, Mr Mitchell generally continued to work the two sessions previously undertaken. 9

● In the latter part of 2016, the working relationship between the parties deteriorated and the tone and nature of the communications was also impacted. The foreshadowed and actual commitments of Mr Mitchell to the new practice, and the engagement of the new Physiotherapist at Uraidla Physio, were both significant contributors to, and exacerbations of, this decline. 10
● On 5 December 2016 Ms Schultz wrote to Mr Mitchell and advised that the respondent would no longer require his services as of 1 January 2017. 11

[4] In the jurisdictional decision I also observed that:

“… Ms Schultz did not seek to evade the obligations that would flow from the treatment of Mr Mitchell as an employee. Rather, she gave Mr Mitchell the choice of arrangement and he elected to be paid the percentage of billings and to be treated as a “contractor” at least in the limited sense in which that dichotomy was discussed and considered by the parties at that time. However, it is the substance of the relationship that must be considered in light of the facts and the approach required by the relevant authorities.” 12

[5] In summary, I concluded that:

“I am on balance satisfied that in relation to the work undertaken at Uraidla Physio Mr Mitchell was not conducting a business of his own within the meaning and contemplation of the authorities, but rather, was an employee within the meaning of the FW Act. That employment was akin to a casual arrangement where, in the context of some ongoing expectation of continuing work, the extent of that work was dependent upon the mutual availability of opportunities (room availability, patient booking and Mr Mitchell wanting to work) with payment linked to actual performance of the work without additional entitlements.” 13

[6] In the present proceedings, Mr Mitchell continued to be represented, with permission, by Ms Evans of Kit Legal and he contends that he was dismissed and that the dismissal was unfair. In that regard, Mr Mitchell submits that:

● He was employed by Uraidla Physio on a permanent part-time basis as he worked regular hours and had an expectation of ongoing and regular work which was only varied by mutual agreement. It was also not understood by Mr Mitchell that his employment could be terminated by Ms Schultz at any time.

● During the August 2016 discussions, where he advised Ms Schultz of being approached to work in a large physiotherapy practice, he made it very clear to the respondent that he would not be making any decision regarding the possibility of full-time employment at that practice until December 2016.

● He was shocked when Uraidla Physio hired a third Physiotherapist and decreased his hours, effectively by half, and submits that the respondent “panicked” when Mr Mitchell advised it of the offer from the other physiotherapy practice and took steps to replace him.

● There was no valid reason for his dismissal that related to his capacity or conduct, he was not give any notice of the reasons for termination nor provided with an opportunity to respond.

● The Small Business Fair Dismissal Code applies but was not complied with.

[7] In terms of when the dismissal occurred, Mr Mitchell submits that, in effect, his dismissal commenced in October 2017 when his part-time hours were reduced and further that the original hours should be the basis for determining any compensation.

[8] Mr Mitchell is seeking compensation for the “sustained” losses arising from his dismissal, which he contends to be approximately $21,880 at the time of the hearing of the matter.

[9] Mr Young appeared, with continuing permission, for Uraidla Physio. It submits that, having found that Mr Mitchell was an employee, it is necessary to retrospectively characterise the nature of Mr Mitchell’s employment and the conduct of the parties. In this regard the respondent accepts that elements of its submissions were somewhat akin to relying upon the vibe of the legislation. 14 Where the submissions are inconsistent, they are put in the alternative.

[10] Uraidla Physio contends that Mr Mitchell was not dismissed and that in any event, any dismissal was not unfair. In particular, it submits that:

● The appropriate characterisation of Mr Mitchell’s employment is as a casual employee.

● Both parties intended that Mr Mitchell’s working hours would be flexible and that he would not be entitled to paid leave. In practice, the applicant’s hours of work did vary frequently and he was not paid for those periods of time that he was absent from work.

● The Commission itself has already found that the employment relationship at the time of termination was “akin to a casual arrangement”.

● There was no “dismissal” from Mr Mitchell’s casual employment. Uraidla Physio merely ceased offering the applicant further shifts and provided three weeks’ notice of its intention to do so.

● Mr Mitchell advised Uraidla Physio that he had obtained full-time employment and in doing so “effectively resigned” and this was merely accepted by the respondent.

● Following the August 2016 discussions, the respondent appropriately indicated to Mr Mitchell that it would recruit a new Physiotherapist as the applicant’s new employment would impact his availability to work at Uraidla Physio. Mr Mitchell provided names of Physiotherapists for the respondent to contact in this regard.

● At the time of giving notice, the relationship between the parties had completely broken down and was unworkable as a result of the applicant’s bullying and non-cooperative behaviours.

● Mr Mitchell’s performance was not of a sufficient standard to maintain his employment and his poor performance was discussed on several occasions.

● Uraidla Physio substantially complied with the Small Business Fair Dismissal Code, but submits that where it is deficient, this is because the respondent was operating on the understanding that Mr Mitchell was an independent contractor. Both parties had intended to create, and believed they had created an independent contractor relationship. It was not harsh, unjust or unreasonable for Uraidla Physio to terminate Mr Mitchell’s employment in the manner that it did, and strict compliance with the Small Business Fair Dismissal Code is not required in such circumstances.

● Mr Mitchell received three weeks’ notice upon termination.

● The termination should be treated as a redundancy, at least for the purposes of determining any compensation. 15

[11] Uraidla Physio also submits that there was no “dismissal” in October 2016 and the date of any termination is 31 December 2016 by notice given on 5 December 2016. It contends that an email of 3 November 2016 from Ms Schultz querying the applicant’s availability over the Christmas period is evidence that no decision to terminate the applicant had been made at that time. Further, Mr Mitchell continued to work after October 2016 and was offered six sessions, choosing to work only two. Accordingly, for the purposes of determining any compensation, the Commission should only have regard to his rate of earnings as at December 2016, being that arising from the two “shifts”.

[12] Uraidla Physio also contends that no compensation should be granted as Mr Mitchell had not suffered any loss given the additional employment, income and other benefits from his full-time employment that had followed the dismissal. Further, any compensation considered by the Commission should be limited to the amount sought in the originating application, being ten weeks at $430.00 per week.

[13] There is no dispute that Mr Mitchell was protected from unfair dismissal within the meaning of s.382 of the FW Act and there is a valid application before the Commission.

2. The additional evidence before the Commission

[14] Mr Mitchell provided a further witness statement and gave sworn evidence. Uraidla Physio relied upon the further witness statement and sworn evidence of Ms Schultz. 16

[15] The evidence of both Mr Mitchell and Ms Schultz was in my view influenced by the breakdown in the employment and professional relationship that occurred later in 2016. This impacted upon their description of the effect of the events and led to some exaggeration.

[16] In terms of the facts of the matter, I prefer the evidence of Ms Schultz where it conflicts with that of Mr Mitchell. Her evidence was more consistent and convincing, and involved concessions where such was appropriate.

3. Additional factual findings in light of the further evidence

[17] As previously stated, much of the context for, and conduct of, the relationship between the parties has been set out in the jurisdictional decision. However, a number of additional findings arise from the further evidence that are relevant to the consideration and determination of the merit and remedy elements of this application.

[18] I will deal with the nature of the employment, the cessation of that employment and the associated factual matters later in this decision. It is however convenient to deal with some of the other major factual elements in advance of those matters and the consideration of the application more generally.

Mr Mitchell’s other work commitments

[19] Before, during and after his employment with Uraidla Physio, Mr Mitchell was involved in, or engaged by, other physiotherapy practices. This included his own practice which involved leasing a treatment room from a doctor’s surgery in Newton. That practice ran into difficulties and in or around July 2016, Mr Mitchell closed it. During the period with Uraidla Physio, Mr Mitchell also did some work in the nearby town of Nairne and despite some expectations that this role might develop significantly, Mr Mitchell did not ultimately proceed with a more substantial role.

[20] After July 2016, when Mr Mitchell ceased operating his own business, he commenced part-time employment at a large physiotherapy practice in Blackwood. I will return to this important development shortly. I also note that the final stages of operating and closing his business distressed and distracted Mr Mitchell. After finally ceasing his own business, Mr Mitchell’s emotional outlook, and his utilisation rate of the available times at Uraidla Physio, improved.

[21] Mr Mitchell advised Ms Schultz of all of the above developments.

[22] In practice, Mr Mitchell’s work commitments with Uraidla Physio supplemented his other work and business activities. This included that Ms Schultz was looking for a Physiotherapist to utilise the treatment rooms when she was not doing so, including during periods of absence, but not so as to become full-time. Mr Mitchell’s other work activities created some limitations on his availability at times and this was to be expected given the nature of the arrangements reached between Ms Schultz and Mr Mitchell.

Discussions about Mr Mitchell taking on the Blackwood job

[23] In August 2016, Mr Mitchell had discussions with Ms Schultz about finding employment with a large physiotherapy practice in the suburb of Blackwood. Mr Mitchell told Ms Schultz that the practice had indicated they would like him to work full-time with the possibility of part ownership in the future. Mr Mitchell also indicated that he would only be working part-time until December 2016 with a view to working full-time in the future.

[24] I observe that this meant that there would be some restrictions on when Mr Mitchell could work at Uraidla Physio and this ultimately restricted his capacity to utilise some of the times that would otherwise have been available to him when the new Physiotherapist was subsequently engaged by Ms Schultz. Further, it should have been clear to Ms Schultz that whilst there was a real possibility that Mr Mitchell would commence full-time employment with the Blackwood practice, this was not guaranteed at that point and would in any event not be until the commencement of 2017.

Discussions about the new Physiotherapist

[25] Uraidla Physio considered that it needed to have another Physiotherapist join the practice. This was as a result of concerns about the degree to which Mr Mitchell was available to utilise the vacant times and provide more flexible relief when Ms Schultz was to be away from the practice. Further, Mr Mitchell’s indication that he may be taking up a full-time role elsewhere exacerbated those concerns including that Uraidla Physio could ultimately be left without any supplementary staff. The respondent also had concerns about the degree to which Mr Mitchell’s sessions were being utilised and I will return to that aspect shortly.

[26] Ms Schultz indicated in a later meeting with Mr Mitchell that she would be advertising for another Physiotherapist. This was advice and not consultation but Mr Mitchell helpfully provided her with the names of two Physiotherapists she may wish to contact.

The September meeting between Ms Schultz and Mr Mitchell

[27] The parties met on 26 September 2016 and Ms Schultz advised Mr Mitchell that she had hired a new Physiotherapist who, amongst other things, would be able to cover Ms Schultz’s sessions when she went on leave. Mr Mitchell initially acknowledged this issue and indicated that at some time in the future he was hoping to eventually work at least 35 hours per week at the Blackwood practice and this also included an hour’s travel each day. Mr Mitchell added that he was still hoping to also do two sessions per week at Uraidla Physio.

[28] Ms Schultz then explained that the new Physiotherapist would begin in October 2016 and would be working two of the sessions (Wednesday and Friday) currently available to Mr Mitchell. This led to a heated discussion between the parties with Mr Mitchell demanding that the new Physiotherapist not start until the end of December 2016 and Ms Schultz indicating that she was taking steps to protect her business as Mr Mitchell was looking to take up full-time work elsewhere. Both Mr Mitchell and Ms Schultz became upset and there was a further argument between the parties regarding Ms Schultz’s ability or otherwise to terminate the applicant’s position and any notice that may be payable.

[29] Mr Mitchell complained to Ms Schultz that this was the “third time” this was happening. Mr Mitchell’s evidence was that he did not say this nor know what the respondent was referring to. I prefer Ms Schultz’s evidence in this regard and find that Mr Mitchell was referring to the three circumstances where his business ventures (and employment) had not lived up to expectations; being Newton, Nairne and now Uraidla Physio.

[30] The discussion concluded on a reasonable basis with Ms Schultz indicating the hope that all three Physiotherapists could work together in the future. Despite this, both Ms Schultz and Mr Mitchell harboured significant concerns following the meeting. Ms Schultz was very concerned about what she considered to be the bullying conduct of Mr Mitchell in the manner in which he was telling her “what to do in her business”. 17 Mr Mitchell was concerned about the impact of the engagement of the new employee, which he considered to be unwarranted, on his available sessions and work hours, and the loss of income that would result.

[31] I note that Ms Schultz and Mr Mitchell did not meet again in person at any point up to and including the time of the cessation of the employment relationship.

The impact of the new Physiotherapist upon Mr Mitchell

[32] Following his discussion with Ms Schultz in September 2016 and before the new Physiotherapist started in October 2016, Mr Mitchell again communicated to Uraidla Physio his desire to continue working Wednesdays. Ms Schultz responded that she wished to keep the diary as already arranged between the three Physiotherapists. The communication was by way of email in the following terms:

From Mr Mitchell:

“Hi. Just looking at diaries. Currently been me wed morning until 11.30. Belinda is only starting at 12. More sense to leave wed morning instead of Saturday?

I had a ride arranged first week in November which includes the Monday.

Leaving wed as is would help either side of that weekend.

How does that idea sound?

Cheers mark

…

From Ms Schultz

Hi Mark,

As mentioned previous email Wednesday could be possible up to 1000 slot, currently it is shut for very short term only so Belinda can back fill as able with child care. The diary has been sorted and I wish to leave it, as you find it today.” 18

[33] The new Physiotherapist hired by Uraidla Physio was limited in the days that she could work due to childcare arrangements. That is, she could only work Wednesdays and Fridays on a regular basis but with sufficient notice would be able to cover any leave that Ms Schultz took including working on other days and for more extensive hours.

[34] At the time Uraidla Physio employed the new Physiotherapist, Mr Mitchell had regular access to available sessions on Monday afternoons, Wednesdays and Fridays. After that engagement, Mr Mitchell no longer had access to the Wednesday or Friday sessions. Whilst there were up to six sessions still available for Mitchell to utilise as he wished, he could only regularly take two sessions, largely but not only, as a result of his other work commitments.

The performance of Mr Mitchell

[35] Performance in this context refers to Mr Mitchell’s availability, the utilisation of his available sessions and the degree to which clients were willing to book with him. This does not relate to his competence as a Physiotherapist and I note that Mr Mitchell was not supervised and his work was not observed or appraised by Uraidla Physio.

[36] At the time of the discussion in September 2016, Mr Mitchell was filling 70-75 percent of his available sessions. That rate varied at times, including in and around August 2016 when the utilisation rate and Mr Mitchell’s “performance” was considered by Ms Schultz to be good.

[37] Ms Schultz’s utilisation rate was consistently at or around 100 percent of the available sessions.

[38] Uraidla Physio conducted a broad review of Mr Mitchell’s statistics in the lead up to the decision to end the relationship.

[39] Based upon the evidence that is now before the Commission, I find that between October and December 2016, Mr Mitchell was filling 65% of his available sessions, not including those sessions which would normally be offered by Mr Mitchell but for which he was not actually available. Further, the review undertaken by Ms Schultz included that between 31 October and 31 December 2016 there were four new patients who were known to Mr Mitchell from previous clinics he had worked at, and some new patients referred by Ms Schultz but that Mr Mitchell did not to take on. 19

[40] Further analysis showed that Mr Mitchell saw 20 patients over the November-December 2016 period and that 11 of these were local patients, with nine being patients he had seen at previous clinics. Of the eleven local clients, six only attended one session with Mr Mitchell and did not rebook. 20

[41] Ms Schultz’s evidence, which I accept, was that the desired utilisation rate would be something closer to 90 percent and that Mr Mitchell’s utilisation rate, and the rate of new and transferrable clients, was ultimately not viable for Uraidla Physio.

Discussions relating to performance/warnings

[42] I will deal with the relevant statutory considerations touching upon this issue in due course.

[43] There were some, at times mutual, discussions about the need to improve Mr Mitchell’s utilisation rate and he would have been aware as a result of the September 2016 discussion that not everything was going well.

[44] However, there is no reliable indication in the evidence that Mr Mitchell was ever informed that his continuing engagement with the business was in jeopardy over his “performance” or any other circumstances. This is in part, a product of the parties’ understanding about the nature of their relationship at the time and the mutual flexibility in the degree of working commitments evident in the arrangements.

The reasons for ending the employment

[45] Uraidla Physio made the decision to end the engagement of Mr Mitchell. I accept Ms Schultz’s evidence that this was because she formed the view that maintaining the available sessions was no longer “viable”. That is, Mr Mitchell’s available sessions were not being sufficiently utilised by clients, with all of the attendant factors leading to that outcome. Further, Uraidla Physio required a Physiotherapist to work 10-15 hours a week with reasonable flexibility to cover Ms Schultz’s absences and it held the view that Mr Mitchell had been unable and/or unwilling to provide this in the later months of 2016 and that this would continue into the future. 21

4. Was Mr Mitchell dismissed by Uraidla Physio?

[46] Uraidla Physio contends the Mr Mitchell was, in effect, a casual employee and as such it merely ceased offering shifts rather than dismissing the applicant.

[47] Mr Mitchell contends that he was, in effect, a part-time employee with regular hours and an expectation of ongoing employment. He further contends that his dismissal commenced when his hours were significantly reduced in October 2016 and completed with the letter provided by Uraidla Physio in early December 2016.

[48] In the jurisdictional decision, I likened Mr Mitchell’s status as an employee to that of a casual. 22 I have now heard further evidence about the conduct of the relationship and its cessation. Having considered that evidence I find that Mr Mitchell was a casual employee, but with an expectation of ongoing employment. That is, there were regular appointment slots (shifts) available and changes in those slots would be a matter to be determined by Ms Schultz after consultation with Mr Mitchell. However, the extent of actual work and shifts was dependent upon the mutual availability of opportunities (room availability, patient bookings and Mr Mitchell wanting and being available to work) with payment linked to the actual performance of the work without additional entitlements.

[49] Section 386 of the FW Act provides as follows:

“386 Meaning of dismissed

(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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[50] There was what might be described as a feint suggestion by Uraidla Physio in submissions that Mr Mitchell resigned when he indicated that he was to take up the Blackwood position. This was, at best, a proposition advanced in the alternative and has no legal merit given the nature of the employment as found by the Commission. It is also clear that the “exclusions” in s.386(2) apply in this matter. Accordingly, Mr Mitchell will have been dismissed for present purposes if his employment was been terminated on the employer’s initiative.

[51] On 5 December 2016, Ms Schultz wrote to Mr Mitchell and advised as follows:

“I am writing to officially notify you that Uraidla Physio will no longer be requiring your services as of the 1^st of January 2017.

As we have discussed your availability was significantly reduced in May 2016. That has adversely affected our clientele numbers. There has been an increasing declined in doctor referred clients that are happy to see you, as well as a decline in clients prepared to transfer onto your list. As I do not think this is an issue that can be resolved Monday afternoon and Saturday morning sessions are increasingly not viable or being utilised to their full potential.

Thank you for your support over the past two and a half years. I wish you well in your new adventure at (name of major Physiotherapy practice).” 23

[52] It is clear that a casual employee may make an unfair dismissal application and will be “protected” from unfair dismissal depending upon, amongst other factors, having sufficient continuous service. Uraidla Physio accepts that Mr Mitchell had such service. It is also clear that where a protected casual employee has an ongoing expectation of employment and the employer indicates that there will be no further engagements, a dismissal may take place. 24

[53] In all of the circumstances evident in this case, the letter of 5 December 2016 was a dismissal of Mr Mitchell’s employment within the meaning of the FW Act.

[54] In terms of Mr Mitchell’s contention that the dismissal started in October 2016, such has no legal merit. Mr Mitchell was not a part-time employee with fixed hours. In any event, even if the reduction in hours could be considered to be a dismissal at that point, the subsequent conduct of Mr Mitchell was not to treat the contract as being repudiated. Rather, the lower average working hours and revised availability of “shifts” was accepted and became the norm. 25

5. Was the dismissal consistent with the Code?

[55] Uraidla Physio is a Small Business within the meaning of the FW Act and this means the Commission must initially consider the implications of the Small Business Fair Dismissal Code established by s.388 of the FW Act (the Code).

[56] Section 385 of the FW Act provides as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[57] I note that Uraidla Physio does not contend that there was a genuine redundancy within the meaning of the FW Act.

[58] This means that if Mr Mitchell’s dismissal was consistent with the Code, it cannot be considered to be unfair within the meaning of the FW Act. Section 396 of the FW Act also requires, in effect, that matters arising from s.385 are to be decided before dealing with the merits of the application.

[59] The Code as declared is set out as follows:

“The Code

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

[60] Accordingly, for an employer to believe on reasonable grounds that the conduct of the employee was serious enough to justify immediate dismissal, the employer must establish that it did in fact hold the belief that:

● the conduct was by the employee;
● the conduct was serious; and
● the conduct justified immediate dismissal.

[61] Uraidla Physio does not contend that there was any basis to support a summary dismissal on the grounds of serious misconduct and there is no evidence to support any such reasonable belief in any event. 26

[62] The alternative question is whether the requirements of the Code in relation to the “Other dismissals” have been met. This requires, in this case, a consideration as to whether:

● Uraidla Physio gave Mr Mitchell a reason why he was at risk of being dismissed;
● The reason was a valid reason based on Mr Mitchell’s conduct or capacity to do the job;
● Mr Mitchell had been warned verbally or preferably in writing, that he risked being dismissed if there was no improvement; and
● Uraidla Physio provided Mr Mitchell with an opportunity to respond to the warning and gave him a reasonable chance to rectify the problem, having regard to the applicant’s response. Noting that rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

[63] I note that the “procedural matters” element of the Code did not arise in this case.

[64] Based upon the evidence before the Commission, I am not satisfied that Mr Mitchell was ever warned that he risked being dismissed if there was no improvement. That is, even to the extent that the discussion in September 2016 represented an indication to Mr Mitchell that his role was reducing, there was no suggestion of a warning of the kind contemplated by the Code in that or any of the other discussions or communications between the parties.

[65] The warning, and the consequent opportunity to respond, are required parts of the Code. Compliance with the Code is a matter of fact and whilst the circumstances of the parties must be considered and applied in a common sense manner as part of a fair go all around, I do not consider that this permits the Commission to adopt a view that attempting to meet the “spirit” or “vibe” of the Code is sufficient. In this case, there was no warning of any description that Mr Mitchell risked being dismissed if there was no improvement.

[66] Accordingly, I am not satisfied that the dismissal was consistent with the Code.

6. Was the dismissal unfair within the meaning of the Act?

[67] Given the above findings, I need to consider whether the dismissal of Mr Mitchell was unfair.

[68] Section 387 of the FW Act 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.”

[69] It is clear that s.387 of the FW Act contemplates that an overall assessment as to the nature of the dismissal must be made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be weighed up in totality.

[70] 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.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Mitchell’s capacity or conduct (including its effect on the safety and welfare of other employees)

[71] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly.²⁷

[72] It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.²⁸ Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.²⁹

[73] I have therefore considered the various factors relied upon by Uraidla Physio during the hearing, where they are supported by the evidence and pertain to facts in existence at the time of the dismissal, as potentially constituting the reasons for dismissal.

[74] Uraidla Physio does not rely, in general terms upon conduct matters. To the extent that Ms Schultz raised issues about alleged bullying from Mr Mitchell, I am not satisfied that the evidence is sufficient to support any such finding. For example, the two professionals had a robust discussion on 26 September 2016 and both were upset by the encounter.

[75] I am satisfied that there were performance issues relevant to Mr Mitchell’s work, in the sense described earlier in this decision. That is, the extent to which his available session times were being utilised, the level of Doctor referrals and new and repeat clients, and the difficulties with having Ms Schultz’s clients transferring to Mr Mitchell, all meant that it was ultimately not viable for Uraidla Physio to continue the arrangements.

[76] I also accept that after September 2016, the change in the sessions available to Mr Mitchell had an impact upon his capacity and willingness to take up those opportunities.

[77] To the extent that the September 2016 change set the context for the dismissal I note that the decision to bring in the third Physiotherapist was due to two factors. Firstly, Ms Schultz required another Physiotherapist in the practice who had more availability to take her overflow clients and to backfill her when she wished to take time out of the business. This meant that it was necessary to bring in a new Physiotherapist as Mr Mitchell was committed at that point to the Blackwood practice and was in any event not the right fit for the business for reasons outlined above.

[78] Secondly, Ms Schultz considered that it was prudent to have another Physiotherapist in the mix given the indication that Mr Mitchell may take up full-time employment with the Blackwood practice. I accept that Mr Mitchell had indicated that this was not guaranteed and would not be considered until after December 2016, however the common evidence was that there were difficulties finding good Physiotherapists and I accept that it would not have been prudent for Ms Schultz to wait until December 2016 to take some mitigation steps.

[79] This had an impact upon Mr Mitchell but not one inconsistent with the nature of the employment relationship. Further, for reasons set out earlier in this decision concerning the “performance” of Mr Mitchell, the factors going to the utilisation rate led to a circumstance where the continuation of the relationship was not going to be ultimately viable.

[80] Arguably, some of the above factors go to sensible business decisions rather than to what could be described as being Mr Mitchell’s capacity or conduct. The consideration in s.387(a) calls on the Commission to consider whether there was a valid reason related to capacity or conduct. Given the nature of the particular role undertaken by Mr Mitchell, there are factors going to the utilisation rate that are relevant to his capacity or conduct. This means that these matters are related to that capacity or conduct and are capable of consideration as part of a valid reason. In any event, these factors are relevant to the overall consideration of the matter by virtue of s.387(h) of the FW Act and I have also considered them in that context.

[81] Having considered all of the relevant circumstances related to Mr Mitchell’s capacity based upon the findings of the Commission I am persuaded that there was a valid reason for dismissal.

Section 387(b) – whether Mr Mitchell was notified of the reasons for dismissal

[82] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken.³⁰

[83] Uraidla Physio contends that it became concerned about Mr Mitchell’s performance and his ability to build a loyal client base in mid-2016 and had Ms Schultz understood Mr Mitchell to be an employee, she would have discussed her concerns more directly with him. 31 Uraidla Physio submitted that in any event it was clear from discussions Mr Mitchell had with Ms Schultz that he was aware that his performance was not at a level expected of him and this would need to improve.32

[84] There were some exchanges between the parties about the factors going to the utilisation rate and concerns that one or both parties had about that. However, there was no notification of the reasons for dismissal as contemplated by s.387(b) of the FW Act.

Section 387(c) – whether Mr Mitchell was given an opportunity to respond to any reason related to his capacity or conduct

[85] The process contemplated by the FW Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. This question becomes whether Mr Mitchell was aware of the precise nature of the employer’s concern about his capacity and had a reasonable opportunity to respond to these concerns.³³

[86] Uraidla Physio contends that Mr Mitchell was aware in at least October 2016 that his performance needed to improve and was given every opportunity to do so. Ms Schultz gave evidence that she counselled and encouraged Mr Mitchell to develop his relationships with potential referrers (such as local doctors and sporting communities) and changed her own working hours to assist the applicant. 34

[87] I accept that Ms Schultz did counsel and encourage Mr Mitchell, at least in the sense set out in her evidence. However, Ms Schultz also accepted that she did not conduct a performance management process as would be expected for an employee, because she did not at that time consider that this was the status of the relationship. I will return to the significance of this understanding later in the decision.

[88] Given that Ms Mitchell was not notified of the reasons for dismissal as contemplated by s.387(b), and given all of the circumstances evident here, I am not satisfied that Mr Mitchell was given an opportunity to respond to any reason related to his capacity or conduct as contemplated by s.387(c) of the FW Act.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Mitchell a support person

[89] There was no meeting to discuss any concerns held by the employer and no request for a support person arose. Accordingly, this consideration is not relevant.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Mitchell – whether he has been warned about that unsatisfactory performance before the dismissal.

[90] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work.³⁵

[91] For reasons set out earlier in this decision, I do not consider that Mr Mitchell was warned about his work performance in a manner contemplated by this consideration.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Section 387(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.

[92] I deal with these two considerations together.

[93] Uraidla Physio is a very small business and there were no dedicated human resource management specialists or expertise in the enterprise. This has impacted upon how the issues leading to the dismissal were handled in a number of ways. These include that Ms Schultz did not have access to dedicated human resource management specialists or expertise in the enterprise that could have given advice about the nature of the relationship and this may well have influenced how that relationship was treated and conducted.

[94] Further, and in any event, Ms Schultz was dealing with a fellow Physiotherapist in a very small practice without ready access to advice and this is a factor to be taken into account. As a result, I have made a meaningful allowance for the circumstances of the employer when considering the manner and procedures adopted as part of the assessment of the overall fairness of the dismissal.

Section 387(h) - other matters considered to be relevant

[95] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This dismissal meant that Mr Mitchell lost access to the sessions that were available to him at that time. This also led to the loss of the associated income and the need to make up for those hours and income through his role at Blackwood. Given the difference in pay arrangements, this meant working more hours at a lower rate.

[96] However, this loss and impact also needs to be considered in the context of the nature of the relationship. I have found that the employment was akin to casual with some expectation of ongoing employment. However, there was always a significant degree of mutual flexibility and I have found that Mr Mitchell was working in Uraidla Physio’s business rather than as a contractor with a stake in that business. Further, the objective basis of the business decisions leading the dismissal as discussed earlier in this decision must also be taken into account.

Conclusion on nature of dismissal

[97] As outlined earlier, the FW Act requires a global assessment having regard to the various relevant statutory considerations. In that context, procedural unfairness is an important consideration given the provisions of the FW Act but does not necessarily mean that the dismissal was unfair. This is reinforced by the objects relating to Part 3-2 Unfair Dismissal of the FW Act in s.381 which relevantly provides as follows:

“381 Object of the Part

… …

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[98] As revealed in various decisions of the Commission (and the Court), each case must be considered in its own circumstances and it is appropriate, amongst other factors, to have regard to whether the procedural deficiencies made any difference to the fairness of the outcome.³⁶ Further, for reasons outlined earlier, it is appropriate to take into account the nature of this very small business in assessing this matter.

[99] In this case, there was little by way of procedural fairness. Although there was a valid reason for dismissal and sound business decisions were made, Mr Mitchell did not have any opportunity to respond to some of the assumptions inherent in those decisions. There was no meaningful discussion about some of the elements that led to the utilisation rate and no opportunity to respond in the knowledge that his future employment was in jeopardy.

[100] There was some discussion about the need for flexibility to better cover Ms Schultz’s intended absences from the practice, however it was never put to Mr Mitchell that the absence of such was ultimately likely to lead to the end of the relationship. In that regard, I do accept that there would have been limits to the degree that such would have created options in practice given Mr Mitchell’s other commitments and the difficulty with transitioning Ms Schultz’s clients; but in all of the circumstances including the consequences for Mr Mitchell, that omission in procedure was unfair.

[101] On balance, and given the statutory considerations, I am satisfied that the dismissal of Mr Mitchell was unreasonable. It was therefore unfair within the meaning of the FW Act.

6. Remedy

[102] Mr Mitchell does not seek reinstatement to his former position, but rather, compensation.

[103] Division 4 of Part 3-2 of the FW Act relevantly provides as follows:

“Division 4—Remedies for unfair dismissal

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.

… …

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.

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

[104] The prerequisites of ss.390(1) and (2) have been met in this case.

[105] Section 390 of the FW Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. I find that reinstatement would be inappropriate.

[106] As set out above, under the FW Act, it is then necessary to consider whether compensation in lieu of reinstatement is appropriate.

[107] Mr Mitchell is seeking compensation in the order of $21,000. Much of the basis of this claim is that the reduced hours resulting from the decision to employ the third Physiotherapist in October 2016 meant that he lost income from that time. Further, he contends that the loss of those hours, and his subsequent dismissal, meant that he had to work full-time with the Blackwood practice at lower rates and he lost the opportunity to supplement that income with other better paying part-time employment.

[108] Uraidla Physio contends, amongst other matters, that Mr Mitchell has not suffered any loss from the termination given his employment income and other benefits from other sources; that any compensation should be based upon his average income at the time of the dismissal; and be limited to no more than that claimed in the originating application. Uraidla Physio also contends that the dismissal could be treated as a redundancy as Mr Mitchell’s “shifts” were not ultimately replaced.

[109] I will deal with most of the various propositions of the parties below. However, I do not consider that Mr Mitchell’s dismissal was a redundancy. The decision to dismiss Mr Mitchell was based upon the factors set out earlier in this decision. That decision was that Mr Mitchell’s employment would not be continued but it was not that the casual job he was undertaking would be restructured and not required to be undertaken by anyone. The decision not to backfill those hours is a separate and consequential one, not the basis of the dismissal itself. 37

[110] I also do not consider that the Commission is prevented from considering compensation beyond that set out in Mr Mitchell’s original application. An application in this jurisdiction is not a formal pleading and circumstances, including the extent of loss, often change after the time of lodgement. Mr Mitchell also did not have access to legal advice prior to making his original claim. The relevant considerations are those set out in the FW Act. The change in the amount of compensation sought, and the basis of that change, may however be relevant to the consideration of costs should an application be made.

[111] A Full Bench in McCulloch v Calvary Health Care Adelaide³⁸ (McCulloch) confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg³⁹ remains appropriate in that regard.

[112] Section 392(2) of the FW Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). Without detracting from the overall assessment required by the FW Act,⁴⁰ it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of Uraidla Physio

[113] Nothing was put on this aspect and in any event this issue is unlikely to arise given my later findings.

The length of Mr Mitchell’s service with Uraidla Physio

[114] Mr Mitchell had been employed for just over two and a half years.

The remuneration Mr Mitchell would have received, or would have been likely to receive, if he had not been dismissed

[115] This involves, in part, a consideration of the likely duration of Mr Mitchell’s employment in the absence of what I have found to be an unfair dismissal. That is, the establishment of the anticipated period of employment.⁴¹

[116] Given my findings, it is evident that the proper course of action here would have been for Uraidla Physio to have put Mr Mitchell on notice that it had concerns about his utilisation rate and the factors leading to that situation and given him an opportunity to respond and improve, or change his actual availability, before making an informed decision.

[117] In all of the evident circumstances it is reasonable to assess the compensation in this matter on the basis that the applicant would, on the balance of probabilities, have remained in employment for a further period of no more than three months including the period of notice that was given. It would have been reasonable for the Commission to deal with this matter on the basis that the relationship would have concluded at that point. This projection is appropriate given the impact of the decline in the professional relationship, the nature of the employment relationship as found by the Commission, the nature of physiotherapy practices, and the context of what is a very small business. This includes the fact that Mr Mitchell and Ms Schultz did not actually work together and largely passed like ships in the night. In addition, given Mr Mitchell’s views about the new practice by later 2016, there was no guarantee that without the dismissal, he would have immediately moved to full-time employment at that time. Further, the arrangements at Uraidla Physio could have continued, at least for that period, without significant consequences for the respondent’s business. However, in the end, it is likely that the relationship would have ended with Mr Mitchell being unable or unwilling to provide sufficient acceptable service to make the arrangement viable beyond the anticipated period.

[118] Mr Mitchell’s average weekly income from Uraidla Physio at that point was $414 per week or $1,794 per month. For reasons outlined earlier, I have used his average earnings at that point and not the pre-October 2016 arrangements.

[119] The projected remuneration that Mr Mitchell would have received based upon the anticipated period of employment with Uraidla Physio would therefore have been no more than $3,588.

The efforts of Mr Mitchell to mitigate the loss suffered by him because of the dismissal

[120] I accept that Mr Mitchell has made extensive efforts to mitigate his losses.

[121] No discount to the amount of compensation is warranted based upon this consideration.

The amount of any remuneration earned by Mr Mitchell from employment or other work during the period between the dismissal and the making of the order for compensation

The amount of any income reasonably likely to be so earned by Mr Mitchell during the period between the making of the order for compensation and the actual compensation

[122] Mr Mitchell received three weeks’ notice, for which he was paid and I have already taken this into account in my assessment of the anticipated employment period.

[123] Mr Mitchell extended his hours at the Blackwood practice from early February 2017. Mr Mitchell was obliged to take steps to mitigate his losses and this was an appropriate measure. Section 392(2)(e) as applied by the relevant authorities requires the Commission to take into account the remuneration earned from that employment.

[124] In a case such as this, where the termination takes place in what could be described as the supplementary job (rather than a full-time or primary position), I consider that it is reasonable to deduct the additional remuneration earned in the continuing position rather than the total earnings from that position.

[125] In making that assessment I have used Mr Mitchell’s gross income from the Blackwood position for January 2017 as the baseline. That is, this was the month after the dismissal by Uraidla Physio took effect but before the additional hours at Blackwood commenced. Given that Mr Mitchell was a part-time employee at Blackwood at the time and this entitled him to paid leave and public holidays, the January figure also appears to be an appropriate base.

[126] Mr Mitchell received $4,615 (gross) from the Blackwood position in January 2017. This was not additional income and is not to be taken into account. The additional income earned from the Blackwood position (above the January 2017 baseline) for February 2017 was $614. This additional income is to be taken into account and deducted from the anticipated remuneration loss.

[127] I will not make a further deduction for the additional income beyond that point, including any income reasonably likely to be so earned by Mr Mitchell during the period between the making of the order for compensation and the actual compensation, because I have projected the employment period and the losses over a period that has already occurred and ceased.

Any other matter that the FWC considers relevant and the remaining statutory parameters

[128] I have taken into account the projected nature of the anticipated loss of remuneration over a known period and given the circumstances of this case, it is not appropriate to make a further allowance for contingencies.⁴²

[129] There is no demonstrated misconduct that should be taken into account as provided by s.392(3) of the FW Act.

[130] In accordance with s.392(4) of the FW Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[131] The maximum compensation limit in this case is the lesser of 26 weeks remuneration or the statutory cap of $69,450.⁴³

[132] Taxation would be payable on any amount determined.

[133] I have not included any provision for superannuation as Mr Mitchell indicated that this would be pursued elsewhere.

[134] Mr Mitchell contends that I should have regard to the proposition that the dismissal meant the loss of the opportunity to have worked some additional part-time hours at another practice, rather than working the additional hours at Blackwood at the lower rate of pay. I do accept the theoretical basis of this proposition. However, it is largely speculative and relies upon the availability of other part-time positions, Mr Mitchell being successful in gaining such positions, and being able to work any such position around any scaled-back (non full-time) commitments at the Blackwood practice. There is little factual foundation for this proposition and in the end it is too speculative to be taken into account. I would however note that the projection of the employment relationship with Uraidla Physio for as long as three months is very reasonable in the circumstances.

Conclusions on remedy

[135] Having regard to the circumstances of this matter applied to the considerations established by s.392 of the FW Act, I consider that it is appropriate to make an award of compensation to Mr Mitchell. Further, I consider that the compensation should amount to $2,974; which has been derived having regard to the projected remuneration loss and the additional income and taking into account the other factors discussed above.

7. Conclusions and Orders

[136] I have found that Mr Mitchell was dismissed, that the dismissal did not comply with the Code and was unfair given all of the circumstances.

[137] I have concluded that having regard to the considerations established by s.392 of the FW Act, it is appropriate that an award of compensation be made as outlined above. The compensation, less any required deduction of taxation, is to be paid by Uraidla Physio to Mr Mitchell within 14 days of this decision. An order⁴⁴ to that end is being made in conjunction with this decision.

COMMISSIONER

Appearances:

C Evans of Kit Legal, with permission, for Mr Mark Mitchell.

P Young, with permission,for Uraidla Physio.

Hearing details:

2017

Adelaide

October 12.

1 [2017] FWC 2476.

2 Jurisdictional decision at [15] and [18].

3 Jurisdictional decision at [19] and [23].

4 Jurisdictional decision at [21] and [43].

5 Jurisdictional decision at [23].

6 Jurisdictional decision at [25].

7 Jurisdictional decision at [26].

8 Jurisdictional decision at [44].

9 Jurisdictional decision at [45].

10 Jurisdictional decision at [48].

11 Jurisdictional decision at [52].

12 Jurisdictional decision at [92].

13 Jurisdictional decision at [99].

14 Recording of proceedings of 12 October 2017 at 2.30 pm.

15 The concept of redundancy was raised by the respondent only for the purposes of assessing compensation and not as a jurisdictional objection preventing the applicant from making this application.

16 To the extent that it is relevant to the merit and remedy determination, the Commission has also had regard to evidence provided by parties in relation to the jurisdictional dispute.

17 Recording of proceedings of 12 October 2017 at 14:09.

18 Attachment E to the Statement of Mr Mitchell – Exhibit R2

19 Statement of Ms Schultz at para 71 – Exhibit R3.

20 Statement of Ms Schultz at para 73 – Exhibit R3.

21 Statement of Ms Schultz at para 77 – Exhibit R3.

22 Jurisdictional decision at [99].

23 Attachment R to the Statement of Mr Mitchell - Exhibit A1.

24 Shortland v Smiths Snackfood Co Ltd – [2010] FWAFB 5709.

25 See Visscher v The Honourable President Justice Giudice [2009] HCA 34 239 CLR 361.

26 See Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services[2015] FWCFB 5264 for a discussion of the relevant requirements.

27 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].

28 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.

29 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 8 October 2002, per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

30 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

31 Exhibit R3 at para 23.

32 Exhibit R3 at para 23.

33 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

34 Exhibit R3 at para 23.

35 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

36 See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 as examples.

37 See Ulan Coal Mines Limited v Howarth (2010) 196 IR 32 citing Jones v Department of Energy and Minerals (1995) 60 IR 304.

38 [2015] FWCFB 873.

39 Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431.

40 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.

41 McCulloch v Calvary Health Care Adelaide[2015] FWCFB 873.

42 See the discussion of contingencies in McCulloch at [20] – [23]; Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, per Ross VP, Williams SDP and Gay C, 17 April 2000 and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, per Williams SDP, Acton SDP and Gay C, 31 October 2001.

43 Section 392(5) of the FW Act.

44 PR592665.

Printed by authority of the Commonwealth Government Printer

Mark Mitchell v Uraidla Physio

[2017] FWC 4376

27 OCTOBER 2017

DECISION