Matthew Browne v MySharedServices Pty Ltd

[2020] FWC 5279

[2020] FWC 5279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Browne
v
MySharedServices Pty Ltd
(U2020/5114)

COMMISSIONER BISSETT MELBOURNE, 2 OCTOBER 2020

Application for an unfair dismissal remedy - compensation.

[1] On 26 August 2020 I issued a decision 1 in which I found that Mr Matthew Browne had been unfairly dismissed from his employment with MySharedServices Pty Ltd (MSS or Respondent) on 9 April 2020. In the decision I found that Mr Browne’s employment was not terminated due to genuine redundancy as the Respondent had failed to fulfil its consultation obligations under the relevant Award.

[2] In the decision I indicated that I would seek further submissions as to remedy. Mr Browne does not seek reinstatement and I therefore do not consider reinstatement appropriate and will consider compensation.

[3] Mr Browne and the Respondent were issued directions which sought that they file written submissions as to remedy. Mr Browne filed his submissions on 3 September 2020 and the Respondent filed its submissions on 17 September 2020. Both parties agreed that I could decide this question on the basis of their written submissions.

COMPENSATION

[4] Section 392 of the Fair Work Act 2009 (FW Act) sets out those matters to be considered in determining an amount of compensation.

[5] I have considered the submissions of the parties within the context of the statutory responsibilities outlined in s.392 which states as follows:

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

[6] Mr Browne commenced employment with the Respondent on 16 September 2019. His employment was terminated on 9 April 2019 (s.392(2)(b)).

[7] Mr Browne submits that it had been his intention to remain with the Respondent for 5 years. He said he had conversations with the Respondent about moving into other roles. Mr Browne submits that it is difficult to determine how long he would have remained employed by the Respondent except that, when he was employed, the Respondent indicated it was looking for an employee who could commit long term to the company.

[8] The Respondent submits that, at the time of the termination of Mr Browne’s employment, it was reviewing all employees’ roles on a daily basis. For this reason it says that Mr Browne would have remained employed at most for a further week.

[9] That the Respondent may have sought an employee who was prepared to commit long term to the business at the time Mr Browne was employed does not assist in determining how long he may have remained employed if his employment had not been terminated when it was. COVID-19 was a disruption that no business could have planned for at the time Mr Browne was engaged and its longer term effects on employment are yet to play out.

[10] I am satisfied that Mr Browne would only have remained employed with the Respondent on a longer term basis if he could have convinced the Respondent and other employees to restructure in some way such that he (or his position) could have been retained. This may have required other employees agreeing to reduce hours or to take a cut in pay or for someone else to be made redundant and for such changes were suitable for the Respondent.

[11] In my earlier decision I found as follows:

[27] I am satisfied that MSS no longer required the role performed by Mr Browne to be performed by anyone because of changes in the operational requirements of the business. The requirements of s.389(1)(a) of the FW Act are therefore met.

[12] I also found that the Respondent did not consult with Mr Browne as required by the relevant Award. I am not convinced however that, having engaged in the consultation required, the Respondent would not have remained of the view that Mr Browne’s position was no longer required and that it would have proceeded to terminate his employment.

[13] In all of the circumstances I consider that Mr Browne would have remained employed by the Respondent for a further one week while a proper consultation process was undertaken. I do not consider (and the evidence before me does not support) that the outcome would have been different in circumstances where there was no substantial change in the status of the business.

[14] Mr Browne therefore would have remained in employment with the Respondent until 26 April 2020. His lost earnings for this period is therefore $961.54 plus 9.5% superannuation (s.392(2)(c)).

[15] I do not make any deduction from this amount for contingencies or for any failure to mitigate his loss (s.392(2)(d)).

[16] Whilst Mr Browne has completed some employment it was after the period I consider he would have remained in employment had his employment not been terminated when it was and I have therefore not deducted that earning from his lost remuneration.

[17] Mr Browne made submissions as to amount he considers he would have received in JobKeeper payments if the Respondent had enrolled in the JobKeeper programme, he had been entitled to those payments and the Respondent made no changes to its workforce size or composition. Mr Browne suggests that if the Respondent had enrolled in JobKeeper he would have been retained in employment for up to a year. If this was the case and, on the basis of the reduction in JobKeeper rates, Mr Browne suggests he would have received $25,700 gross.

[18] Whilst I acknowledge the matters raised by Mr Browne, it is not the Fair Work Commission’s role to require an employer to enrol in the JobKeeper program. What Mr Browne might have received had the Respondent chosen not to make any employees redundant is, in my view, to engage in speculation well beyond any evidence before me.

[19] The Respondent suggests that it is currently under review by its Directors to determine if it can continue trading and suggests that any order of compensation would “severely impact on [the Respondent’s] ability to maintain its trading status…” The suggestion being that it has no, or a very limited, capacity to pay.

[20] The Respondent has not provided any evidence of its financial status. Given the minimal amount of compensation I intend to order I do not consider that the amount ordered will, of itself, impact on the viability of the Respondent enterprise.

[21] Mr Browne did not engage in misconduct so I have not made any deduction for this. Likewise the order I make does not include any amount for shock or distress. The amount of the order is well below the statutory compensation cap.

CONCLUSION

[22] For the reasons given above I have determined that MySharedServices Pty Ltd pay to Mr Browne the amount of $961.54 taxed as required by law, plus 9.5% superannuation as compensation in relation to his unfair dismissal application.

[23] I will issue an order 2 to this effect requiring that this amount be paid within 14 days of the date of the order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR723260>

 1   [2020] FWC 4445.

 2   PR723261.