Melanie Davidson v Visa Global Logistics Pty Ltd T/A Visa Australia Pty Limited

[2015] FWC 7332

[2015] FWC 7332

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melanie Davidson
v
Visa Global Logistics Pty Ltd T/A Visa Australia Pty Limited
(U2015/7931)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 9 NOVEMBER 2015

Application for relief from unfair dismissal.

Introduction

[1] On 27 May 2015 Ms Melanie Davison (the Applicant) lodged with the Fair Work Commission (the Commission), pursuant to s.394 of the Fair Work Act 2009 (the Act) an application for a remedy for unfair dismissal against her former employer Visa Global Logistics Pty Ltd T/A Visa Australia Pty Limited (the Respondent).

[2] The Applicant commenced her employment with the Respondent on 2 January 2007. She was notified of her dismissal on 21 May 2015 and it took effect on that day.

[3] The Applicant submitted that the dismissal was unfair because she had been given an unjust “first warning” followed by a “show cause” letter which led to her dismissal. The letter, of 12 May 2015, alleged the Applicant had said to another staff member “can you go and punch Stacey in the face”. The alleged conversation took place on the telephone on 11 May 2015. Both of the other employees were in Brisbane. The letter referred to an earlier incident of 24 February in which the Applicant allegedly raised her voice and swore at another staff member. She received a written warning for this.

[4] The show cause letter was signed by Mr Scott Walker, the Respondent’s National Transport Manager. It made clear that termination of employment was an option. The Applicant was given until close of business on 13 May 2015 to respond in writing. She was suspended on full pay from 12 May.

[5] The Applicant was Transport Supervisor for the Respondent. Her package, at the time of termination was $109,500 per annum including superannuation.

[6] The Applicant’s response to the “show cause” letter was to lodge a formal complaint against Mr Walker pursuant to the Respondent’s Anti-Discrimination and Harassment Policy on 15 May. This was addressed to the then National Human Resources Manager, Ms Neal. It was alleged that Mr Walker had done nothing about abuse directed at the Applicant by one of the Respondent’s drivers in April 2014.

[7] It was further alleged that the Applicant was given a written warning for an altercation with a co-worker, Joshua Merline, in February 2015 and no action was taken against him. The Applicant asserted that Mr Walker had given her excessive work, had a hostile attitude to her and objected to her managing her husband, who was a driver for the Respondent.

[8] The Applicant also sent a letter to Mr Walker on 15 May 2015. She said that her remark on 11 May had been taken out of context and was a joke. She challenged the procedure adopted by the Respondent as being contrary to the Act. At the conclusion of the letter she raised the possibility of a severance payment. It is apparent that an offer was made shortly thereafter but rejected.

[9] The Respondent is a freight forwarding and logistics business with some 250 employees. It relies on the written warning given to the Applicant on 27 February for yelling and swearing at a fellow employee. The Applicant admitted, under cross-examination, that she had called the employee a “fu - -ing c - -t”. The Respondent says that the Applicant was “dismissive” of the warning. The incident on 11 May had come to light because the Applicant’s remark had been reported by the worker, Lawrence Pilgrim, who told it to Stacey Kite who then complained to management because she felt threatened. The Applicant was suspended on 12 May and given 24 hours to respond. This was extended until 15 May. A meeting of senior management, which included Mr Walker, on 18 May, decided that she should be dismissed for misconduct. A without prejudice offer of $10,000 was made at an informal meeting on 19 May between the Applicant and the Respondent’s representatives, but she rejected this the next day. Senior management then decided to terminate her. A letter was sent to her on 21 May. She was paid four weeks in lieu of notice.

[10] Visa denies that it did not provide procedural fairness to the Applicant. Indeed, it submits that the Applicant was warned numerous times, formally and informally, about her conduct.

[11] The Respondent’s termination letter of 21 May was signed by Ms Neal, the then National Human Resources Manager. It acknowledged that the Applicant had apologised even if her remark had been made in a joking manner. It was based on the alleged breach of the Respondent’s Anti-Discrimination Policy on 11 May and the warning of 27 February.

Commission Proceedings

[12] The matter was conciliated on 17 June 2015 but did not settle.

[13] I conducted a telephone programming hearing on 2 September 2015.

[14] The hearing took place on 10 September 2105 in Sydney. A further hearing took place on 16 September at which final submissions were made.

[15] The Applicant was represented by Mr R. Byrnes, solicitor and the Respondent by Ms L. Shanahan, solicitor. Both were granted permission to appear pursuant to s.596 of the Act.

[16] The Applicant relied on written submissions and her witness statement and oral evidence. Two other employees of the Applicant gave evidence as a result of an order to attend, Ms Ramona Nakauta and Mr Timothy O’Brien.

[17] The Respondent relied on written submission and the witness statement and oral evidence of:

● Scott Walker, the Respondent’s National Transport Manager.

● Lawrence Pilgrim, the Respondent’s Queensland Transport Supervisor.

● Stacey Kite, the Respondent’s Queensland Customer Service Officer.

Protection from Unfair Dismissal

[18] An order for reinstatement or compensation may only be issued where I am satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[19] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[20] Although the Applicant was not covered by a modern award or an enterprise agreement, as she was in a management position, her salary was below the high income threshold. The threshold is $136,700 from 1 July 2015. It was conceded that she was a person protected from unfair dismissal in accordance with s.382(b)(iii).

[21] Section 396 provides that certain matters must be determined by the Commission before proceeding to deal with the merits of a matter. It provides:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating 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.”

None of these matters were at issue in this case.

Was the dismissal unfair?

[22] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

[23] No issue was raised pursuant to s.385(a), (c) or (d).

Harsh, Unjust or Unreasonable

[24] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“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.

The Arguments of the Parties

[25] The Applicant submitted that her dismissal was harsh, unjust or unreasonable because:

● In her over eight years of employment with the Respondent she had occupied a trusted position as New South Wales Transport Supervisor and had a good record. She had received regular pay increases and positive reviews.

● The dismissal took place for an alleged breach of the Anti-Discrimination and Harassment Policy but no case for harassment is made out.

● There is no suggestion that the person in Brisbane who heard the remark on 11 May or the person about whom it was made were “harassed”.

● The dismissal was for “an inappropriate comment. The comment was, in fact, a joke and should have been taken that way.

● The 11 May incident was not related to the earlier warning and was not relevant.

● The Applicant submits that the environment of the industry was very much a “Boys Club”. There were no other women in her position and she needed to stand up for herself to survive.

● The Applicant submitted that Mr Walker had been trying to “force her out” since her marriage in 2013. He had not taken any action about the behaviour of Mr Merline, despite the Applicant’s complaints, leading to the altercation at the end of February. She did not deny what she said. However, she submitted that a warning was not justified especially as no action was taken against Mr Merline.

● The Applicant initially sought re-instatement but, at the hearing, this was withdrawn and the claim became six month’s compensation. She had alternate employment at a salary of $60,000, from 1 June 2015.

[26] The Respondent submitted that the Applicant’s dismissal was not harsh unjust or unreasonable because:

● The Applicant’s abusive and threatening conduct in the workforce amounted to misconduct and was a valid reason for her dismissal.

● The Applicant had been spoken to on several occasions about her language culminating in the written warning of 27 February.

● Stacey Kite had felt intimidated by the Applicant’s remarks as reported to her by Lawrence Pilgrim.

● The Respondent submits that the Applicant had adequate notification of the reason for her dismissal and an opportunity to respond as a result of the “show cause” letter given to her on 11 May.

● Scott Walker’s evidence was that the Applicant was the subject of a number of complaints by other employees about her conduct. She had been given counselling because she had favoured her husband. He confirms that the written warning to the Applicant arose from the altercation with Mr Merline. She received the warning because of the language she used. He was not warned. The Applicant was given the “show cause” letter at the meeting on 12 May which had already been prepared before she was asked to explain. Her explanation that the remark was a joke was not accepted.

● Lawrence Pilgrim’s evidence was that initially he took the Applicant’s comment “punching in the face” as a joke. He became concerned that it was not acceptable, then reported it to Ms Kite because he felt it did not represent a commitment to good team work.

● Stacey Kite’s evidence was that she felt intimidated by the Applicant’s comments which she believes was “punch in the head”. She reported them to Scott Walker.

Approach of the Commission

[27] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[28] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:

“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”

[29] In this case, there was not a dispute as to the basic facts of the Applicant’s alleged wrongdoing. She did not deny that she said what she was alleged to have said on 11 May and in relation to the February warning. She was apologetic for what she said.

[30] The issue is what interpretation is to be put on the Applicant’s remarks in the overall circumstances of the workplace. Was her conduct excusable and explicable? Was the action of the Respondent proportionate to the offence allegedly committed by the Applicant?

Valid Reason - s.387(a)

[31] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench said ‘In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable’.

[32] Northrop J in Selvachandranv Peteron Plastics Pty Ltd (1995) 62 IR 371 said:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly ...”

[33] In Parmalat Food Products Pty Ltd v Wililo, [2011] FWAFB 1166, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

[34] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered under s.387:

“[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v Commonwealth – that s.170DE(2) by its operation could render invalid a reason that would otherwise have been a valid reason. The fact that some dismissals are “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” means that the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class of dismissals where there is no “valid reason” for the dismissal.

[21] Section 387 specifies a range of matters that must be considered in each case. Section 387(h) requires consideration of “any other matters that FWA considers relevant”. In any given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or unreasonable” and thus are “relevant matters” that must be considered pursuant to s.387(h).

[22] Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter greatly. That will tend to be so when the particular misconduct, shorn of the personal circumstances of the employee and the broader context beyond the particular acts or omissions that are said to constitute the misconduct, is clearly a matter that a reasonable employer is entitled to take seriously. This is such a case.

...

[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1). “

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.

. . .

[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”

[35] I respectfully adopt this approach.

[36] The Applicant’s main defence to the dismissal was that her remark on 11 May was meant as a joke. I found her demeanour as a witness to be credible. She was contrite and somewhat embarrassed by her language, especially in relation to the February incident (Transcript PN536 – PN545). She said things in the workplace that she conceded were not appropriate. Were they valid reasons for dismissal, however?

[37] On the balance of probabilities, I accept the Applicant’s evidence that her comments were meant as a joke. It is true that the words could be misunderstood. They were not, however, spoken directly to the employee concerned. The evidence of Lawrence Pilgrim is, overall, supportive of this conclusion. Stacey Kite’s complaint to the Respondent was wholly based on Lawrence Pilgrim’s account, the next day, which seems to have shifted somewhat.

[38] There was no evidence of a breach of the Respondent’s anti-discrimination and harassment policy. It is clear that there was no threat of violence or act of intimidating behaviour to the employer or another employee. The words were spoken to a third person. The Applicant had never met Stacey Kite. She concedes that she was short with her in the email exchange, but explains that this was due to pressure of work. (Transcript PN115 – PN129)

[39] Mr Byrnes submitted that the Applicant was dismissed solely because of the remarks on 11 May. I do not accept that this was the case. The “show cause” letter makes reference to the earlier written warning. I accept, however, that the employer acted because of the view it took of the later remarks. The earlier warning was mentioned as a support for the action that was taken rather than a major factor. In any event, I am not convinced that this warning was justified. There was a workplace conflict where only one employee, the Applicant, appears to have been disciplined. While the Applicant’s language may have been intemperate, in the context of this workplace, it is hard to see it justified a formal warning to her alone.

[40] I am satisfied that, for whatever reasons, there was a breakdown in the relationship between the Applicant and Mr Walker. This explains, in my view, the disciplinary action taken by the Respondent.

[41] In summary, I find that there was not a valid reason for dismissal.

Notification of a valid reason – s.387(b)

[42] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”   Ibid at 151.

[43] The Applicant was required to attend the meeting with management with very little notice on 12 May. She was given a pre-prepared “show cause” letter. It would appear that the Respondent had essentially made up its mind to a large degree. However, she was given 24 hours to respond. This was extended by two days. Without prejudice settlement discussions took place.

[44] It was clear to the applicant that dismissal was an option. I find that the Applicant was notified of the reason for dismissal.

Opportunity to respond s.387(c)

[45] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.

[46] It follows that the applicant has an opportunity to respond.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[47] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[48] There was no breach of this section. The Applicant had a support person in attendance at the 12 May meeting.

Warnings regarding unsatisfactory performance – s.387(e)

[49] This was not a performance issue so this provision does not apply.

Impact of the size of the Respondent on procedures followed – s.387(f)

[50] Given the size of the Respondent’s business, this was not a relevant factor.

Absence of dedicated human resources management specialist/expertise on procedures

followed - s.387(g)

[51] Human resources specialists were involved.

Any other matter that the FWC considers relevant

[52] Section 387(h) allows the Commission to consider any other matters it considers relevant. These must be considered in the context of the object of Part 3 - 2 of the Act contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and the employee concerned”.

[53] In my view not sufficient weight was given by the Respondent to the Applicant’s substantial length of service which culminated in her promotion to a supervisory position in a challenging work environment. Apart from the instances of workplace conflict which were the subject of the case, it was not contested that her work record was satisfactory.

[54] Even if the worst interpretation was to be put on the applicant’s conduct, there are sanctions which could have been applied by the Respondent which were less severe and more appropriate.

[55] For the above reasons, in addition to the finding that there was no valid reason for dismissal, I find that the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, I find that the dismissal was unfair within the terms of s.385.

Compensation

[56] Having found that the dismissal was unfair, I now turn to the appropriate remedy.

[57] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

“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.”

[58] The Applicant does not seek reinstatement and it would not be appropriate given the difficult relationship of the Applicant with Mr Walker, her Manager.

[59] Section 390(3)(b) provides that I may only issue an order for compensation to the Applicant if it is appropriate in all the circumstances.

[60] I have found that the applicant has been unfairly dismissed and that reinstatement is not appropriate in all the circumstances. I am satisfied that an order for compensation should be made.

[61] Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered 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.”

[62] The method for calculating compensation under s.392 of the Act was dealt with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge,[2013] FWCFB 431 (Bowden). In that decision the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket, (1998) 88 IR 21 and Ellawala v Australian Postal Corporation, Print S5109 (Ellawala). I have adopted the methodology utilised in Bowden in determining the amount of a payment of compensation.

[63] I will now consider each of the criteria in s.392 of the Act.

Remuneration that would have been received: s.392(2)(c)

[64] The Applicant earned $109,000 per annum. It was submitted by her that she would have remained an employee of the Respondent for an indefinite period. It is difficult to accept this, given the difficulties the Applicant had with Mr Walker and some other employees. She had also reached the upper limit of promotion, apart from replacing Mr Walker.

[65] I determine that the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had she not been dismissed is six months. The remuneration she would have received is therefore $54,500.

Remuneration earned s.392(e)

[66] The Applicant received four week’s pay in lieu of notice and obtained another job at a salary of $60,000 per annum on or about 9 June. The Applicant was able to mitigate her loss quite quickly, but there is still a substantial loss of on-going income. On the basis of the alternative employment obtained and the period without pay, the compensation is reduced to $21,000.

Income likely to be earned: - s.392(2)(f)

[67] This matter is not relevant.

Other matters: - s.392(2)(g)

[68] There are no other matters that I consider appropriate to consider.

Viability: - s.392(2)(a)

[69] This matter is not relevant.

Length of Service: - s.392(2)(b)

[70] The Applicant’s reasonably long service is a factor in support of an order for compensation.

Mitigating efforts: - s.392(2)(b)

[71] In considering whether the Applicant has taken steps to mitigate the loss suffered as a result of the dismissal I should take into account whether the Applicant acted reasonably in the circumstances, (Ellawala).

[72] I find that the Applicant has made efforts to mitigate her loss suffered as a result of the dismissal.

Misconduct: s.392(3)

[73] No adjustment to the compensation is appropriate on this ground.

Shock, Distress: s.392(4)

[74] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap: s.392(5)

[75] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the Applicant, or to which the Applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or half the amount of the high income threshold immediately prior to the dismissal.

[76] The high income threshold component is $68,350.

[77] The amount of compensation I will order does not exceed the compensation cap.

[78] I will order the Respondent to pay to the Applicant an amount of $21,000.

Conclusion

[79] I am satisfied that the Applicant was protected from unfair dismissal, and that the dismissal was unfair and a remedy of compensation is appropriate. In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.

[80] An order (PR573749) will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

R. Byrnes, solicitor for the Applicant.

L. Shanahan, solicitor for the Respondent.

Hearing details:

2015

Sydney:

September 10, 16.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR573255>