Melanie Parker-Walford v PHT Holdings Pty Ltd T/A Sushi-Pro

[2013] FWC 432

Note: An appeal pursuant to s.604 (C2013/2989) was lodged against this decision - refer to Full Bench decision dated 12 April 2013 [[2013] FWCFB 2191] for result of appeal.

[2013] FWC 432

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Melanie Parker-Walford
v
PHT Holdings Pty Ltd T/A Sushi-Pro
(U2012/13661)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 23 JANUARY 2013

Summary: smaller business - absence of human resource expertise - relief granted - order for payment made.

[1] On 27 September 2012 Mrs Melanie Jane Parker-Walford (“the Applicant”) made an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in relation to the decision by PHT Holdings Pty Ltd t/a Sushi-Pro (“the Respondent”) on 16 September 2012 to terminate her employment.

[2] The Applicant performed duties as a Production and Quality Manager reporting to the General Manager (Mr David Pickering) between March 2011 and until the day of her dismissal on 16 September 2012. It appears the Applicant was made a full time employee on 1 July 2012.

[3] The dismissal letter signed by Mr Pickering on 16 September 2012 ostensibly terminated the Applicant’s employment on grounds of redundancy. However, Mr Pickering’s subsequent evidence was that the reason given for the dismissal was a fabrication so as to conceal the actual reasons for the dismissal.

[4] The actual reasons for the dismissal were stated on the employment separation certificate given to the Applicant. It was said on the certificate that: the Applicant had absented herself from her employment; used alcohol in the workplace; and had not completed tasks as per her position description. In addition to this, it was further put in evidence that the Applicant had left so-called “threatening” telephone messages on Mr Pickering’s telephone answering service (though these messages were left after such time as the dismissal notification had been given effect).

Absenteeism

[5] The Respondent contended that on Wednesday, 12 September 2012 the Applicant sought two nights’ leave (for the Thursday 13 September 2012 and Friday 14 September 2012). The leave was approved on the basis that the Applicant would ensure that production would be uninterrupted and a senior person would oversee the operation.

[6] The Respondent - in the form of Mr Pickering - argued that on Friday, 14 September 2012 the production shift was not provided with the relevant packaging materials and that it was necessary to contact the Applicant to discover what had taken place. The Respondent had been advised by an employee at work at the time that an inexperienced young Japanese boy (he was apparently 29 years of age and had worked for the Respondent for some duration) was in charge of a shift. The product that was produced that night was said by Mr Pickering to be of “dreadful” quality and had resulted in complaints from a significant customer.

[7] There is nothing in the evidence that directly links the acting-supervisor for the evening with the quality of production. It is unknown how the issues about the quality of the production arose and what the precise nature of the concerns was, and how such concerns were investigated and proven. Further, the absence of packaging was readily rectified. The packaging was located in a different area to that which the acting supervisor had anticipated. No delay to the production process of any consequence arose.

[8] The actual issue of consequence in this matter was whether or not the experienced employee - Mrs Zenada Preisenberger - who would ordinarily have supervised production of the Friday night in the Applicant’s absence, was ever contacted by the Applicant and advised that she was required to work that evening. Mrs Preisenberger was adamant in her evidence that she was never contacted by the Applicant and advised of the opportunity of a shift on the Friday evening. The Applicant herself claimed that she had sent a text to Mrs Preisenberger and anticipated she would be at work. No evidence of the text was provided in the hearing. I’m inclined to the view that an employee such as Mrs Preisenberger appeared to be an employee who would have willingly opted to work if she had had the opportunity, and would not ordinarily fail to attend the duties.

[9] On balance, I am of the view that the Applicant did not invite Mrs Preisenberger to perform duties to cover her absence on Friday, 14 September 2012.

[10] Production difficulties were said to have arisen again the following evening, Saturday, 15 September 2012.

[11] The issue here was that Mr Pickering was advised that there were no pre-prepared materials for production that evening. Mr Pickering contacted the Applicant to enquire why this was the case and why the person responsible for preparing such materials had not been advised of his services being required. As it was, the Applicant presented for work on the Saturday and prepared the vegetables, chicken and so forth (even though she was not rostered on that day).

[12] No significant impact on production followed.

[13] According to Mr Pickering, the Applicant was asked to attend a meeting to discuss the supervision issues that had arisen over the previous nights prior to her next rostered shift on Sunday evening, 16 September 2012. However, when he spoke to the Applicant early on the morning of 16 September 2012 the Applicant indicated that she would not be coming in to work as she was tired and was having a day off. The Respondent considered that the Applicant had abandoned her employment and thereafter took steps to terminate her employment on the ground set out above.

[14] It appears that by means of text message Mr Pickering rearranged a meeting for much later that day at a cafe outside the workplace.

[15] The Applicant denied that she had ever abandoned her employment but she had decided to take all the days between 14 September and 16 September 2012 (inclusive) off, and that this had been approved by Mr Pickering. It was never open therefore for the Respondent to reach an adverse view about the Applicant’s conduct on the presumption of absenteeism on Sunday 16 September 2012.

[16] There is a direct conflict in the evidence on this occasion, not only in relation to whether or not a telephone call was made in the early morning by Mr Pickering to the Applicant, but whether or not the Applicant was on approved leave that day. The latter issue is the more important.

[17] The Applicant met with Mr Pickering at 4.00 PM at a cafe. Mr Pickering at that meeting explained that the owner of the business had reached a view that the employment relationship with the Applicant was unsustainable.

[18] In the course of that conversation the issue of the Applicant’s attendance was raised. Despite this, the Applicant on her own evidence never objected to the claim in relation to her attendance or referred to the fact that she was on approved leave at Mr Pickering’s own initiative.

[19] I find this evidence to sit uneasily with an underlying claim that the Applicant was on approved leave at the time. Ordinarily it would be expected that a person would resist such claims when on approved leave, and particularly so when she was in the company of the very person who had approved that leave. But this was not the case here.

[20] By way of explanation, the Applicant claimed that she had simply had enough physically and mentally and that she did not resist or challenge the decision to dismiss her, but only said “fair enough”.

[21] I think on balance that had the Applicant been adamant she had an approved day off on the Sunday she would have challenged Mr Pickering’s basic assertion about her taking time off. The fact - on the Applicant’s own evidence - she made no comment whatsoever about the issue leads me to infer that Mr Pickering’s claim is the more accurate.

Alcohol in the workplace

[22] Mr Pickering also contended that on 27 August 2012 he had received a telephone call from the Applicant at 3:30 AM asking him to telephone one of the drivers and to get him to return to the factory as he had forgotten a delivery.

[23] Mr Pickering considered the call from the Applicant to be unusual as her shift had finished hours before the call had been received.

[24] When contacted, the driver in question indicated he had not forgotten a delivery and that the Applicant had been at the workplace in an apparently inebriated condition and had interrupted the organisation of deliveries.

[25] Mr Pickering subsequently made enquiries into the events of the prior day. Mr Pickering maintained that the Applicant had indicated to him that she had finished her shift at the ordinary time and had gone home and consumed two bottles of wine. After having done so, the Applicant informed him that she had returned to the factory as she felt something was wrong with the packing arrangements.

[26] One of the drivers involved in the conduct on the morning of 27 August 2012 provided evidence of the Applicant’s conduct.

[27] The Respondent subsequently introduced an alcohol testing procedure into the workplace as a consequence of concerns that the Applicant and another employee had been consuming alcohol and potentially endangering other employees.

[28] Mrs Preisenberger gave evidence that she had “occasionally” asked the Applicant to cease drinking alcohol at work.

[29] I should add at this point that the Applicant herself vigorously denied the consumption of alcohol in the workplace. She provided a number of witnesses who themselves indicated that they had not witnessed the Applicant consuming alcohol in the workplace. Those witnesses had observed that the Applicant had sometimes kept a bottle of wine in the staff refrigerator so it would be cool for the purpose of consumption once the Applicant had finished her shift and reached home, but that the Applicant’s conduct went no further than this.

[30] I do not doubt necessarily the evidence of the Applicant’s witnesses, but they were not present on the occasion of the incident of 27 August 2012 and could give no evidence about the occurrences of that night. Equally, however, there was slender evidence of the Applicant having any practice of consuming alcohol in the workplace, despite the informality that appeared to characterise its operations.

Not completing tasks as per position description

[31] The Applicant’s position description obligated her to be responsible for the procurement of stock and to maintain minimum levels of stock to ensure efficient production.

[32] Mr Pickering claimed that over the course of her employment and particularly during the two weeks prior to 27 August 2012 there were items missing from the daily orders that caused him to request urgent deliveries or make alternative arrangements for evening production. Mr Pickering claimed that he expressed his concerns about this problem to the Applicant verbally on 22 August 2012, 23 August 2012 and 24 August 2012.

[33] Mr Pickering claimed that procurement issues had been the subject of ongoing discussions with the Applicant, because such issues interrupted production.

[34] Mr Pickering also claimed that the Applicant struggled with ensuring wage targets were met on a fortnightly basis. The thrust of Mr Pickering’s argument in this regard was that the Applicant was not rostering staff to achieve this particular target (which was specified in her position description).

[35] In the past 12 months, Mr Pickering contended that the Applicant had only met the wage target on one occasion in the pay cycle.

[36] Mr Pickering also contended that the Applicant was an ineffective manager in that those employees she supervised felt they were being harassed and belittled, which resulted in a high turnover of staff. There was a deal of evidence from some of the witnesses that the Applicant had a loud and aggressive manner with which some staff found it difficult to cope.

[37] The Applicant denied the above claims. Her evidence was that she was a consistent and vigorous contributor to the efficient operation of the business and had worked well past the minimum requirements of the position. Those witnesses that appeared on the Applicant’s behalf also spoke in support of terms of her managerial style in general.

LEGISLATIVE PROVISIONS

[38] The relevant legislative provisions arise under s.387 of the Act which reads as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.

CONSIDERATION

(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)

[39] It seems to me that the Respondent had a number of concerns with the Applicant’s conduct and her capacity to perform her duties at the requisite level.

[40] Unsurprisingly, it seems to me that of these concerns, the Applicant’s conduct in appearing at work in an intoxicated state significantly undermined the employment relationship. There is no dispute that the Applicant did attend work after her ordinary shift had concluded and after such time as she had consumed an amount of alcohol.

[41] The Applicant herself gave evidence that she had gone to bed at 3:30 AM after consuming a bottle of wine and instead of retiring decided to return to work to check the packaging of the production for that day to ensure there were no errors. The Applicant agrees that she would have been over the blood alcohol limit when she drove to work that early morning. The Applicant said she took the steps she did as she had a lingering doubt that certain products had been properly packed during her shift, and sought to ensure that the Company owner would not be exposed to any production errors upon his return to the workplace that day (after a period of extended absence).

[42] As it was, the Applicant did discover a small error in the manner in which certain product had been packaged and that was corrected at her initiative.

[43] Though the Applicant’s conduct was a source of concern to the Respondent, it was not enough, however, for the Respondent to dismiss her at that time. Nor did the Respondent have cause to counsel or warn the Applicant. It was more the case that when this conduct was taken in hand with other continuing lower-level performance issues concerning the management of the roster, when a further conduct-related trigger event occurred - the perceived failure to attend work on Sunday 16 September 2012 when a meeting was to occur - the Applicant was dismissed.

[44] And in respect of this latter concern, as I have found above, the evidence does not support a finding that the Applicant had sought and been given permission to not be in attendance at her rostered shift on Sunday, 16 September 2012.

[45] There is much in this matter that is somewhat unusual.

[46] As I said above, the Respondent did not invest sufficient weight in the conduct of 27 August 2012 to dismiss the Applicant at that time, or to take any other action at the time. Whilst the decision to return to work after consuming alcohol was a regrettable one, in the particular context of this matter it was not misconduct at a level that would be fatal to the employment relationship. 1

[47] Further, I do not see in the circumstances of the shifts on Friday, 14 September 2012 and Saturday, 15 September 2012 any interruptions to production or failings on the Applicant’s part that warrant dismissal.

[48] The Applicant’s failure to attend for work on Sunday, 16 September 2012 without permission is a more serious matter. But the incident was not one that was reflective of any pattern of conduct, let alone after a warning for related conduct. The Applicant simply claimed to be fatigued. There were other means of managing the Applicant’s unauthorised absence in such circumstances on one day other than by dismissal.

[49] There were various issues about procurement which had been discussed over some time. But none of these appear to me to be matters of such weight as to warrant the dismissal of the Applicant, even when they are taken into account with the above-mentioned issues. It may be the case that there were some interruptions to production because of the non-availability of some particular products that are used on a day-to-day basis. But it was never put to me that these incidents were the cause of some material damage to the production process or caused reputational damage because of the delay in delivering product.

[50] The Applicant’s conduct was not perfect. Also, there were deficiencies in the performance of her work particularly in relation to procurement and meeting the wage cost expectations.

[51] With some more time these matters could have developed to point at which they provided a valid reason for the dismissal of the Applicant. But that critical point had not been reached by 16 September 2012.

[52] I therefore find that there was no valid reason for the dismissal of the Applicant at that time.

(b) whether the person was notified of that reason

[53] The Applicant was not informed of the full suite of reasons for her dismissal at the time of or prior to her dismissal. Reference was made in the discussion in the cafe to attendance issues and the failure to cover shifts. But nothing was said about other issues concerning production and procurement and conduct concerns in relation to other staff, or otherwise.

[54] Further, in the letter of termination, the Applicant was informed that she was being made redundant, but this disguised the actual reasons for her dismissal, which only became evident with the issue of the separation certificate (and after).

[55] I have not been able to read into the evidence of the meeting on Sunday, 16 September 2012 that Mr Pickering had come to seek the views of the Applicant about the prospective reasons to her dismissal. It appears to me on the evidence that Mr Pickering appeared to convey the decision by those above him to bring the Applicant’s employment to an end that day.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[56] The Applicant was dismissed without an opportunity being given for her to respond to the full suite of reasons for her dismissal.

(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

[57] The Applicant was not dismissed in a context in which there was no opportunity to seek the assistance of a support person. Section 387(d) of the Act therefore does not apply.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[58] I have mentioned above that there were some performance issues in relation to the Applicant’s performance of her duties. She did not in the eyes of the Respondent demonstrate a sufficiently deft management style and she was failing to meet her performance descriptors in relation to the achievement of wage cost constraints and to manage the procurement strategy.

[59] These are matters that had been the subject of discussion in the past and about which the Applicant was aware as constituting concerns on the part of the Respondent.

(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;

[60] The Respondent employs some 27 or so employees, with many being engaged as casuals to meet roster requirements depending on production demands at any particular time. It is a smaller business on a relative scale, and has no functional or discrete HR division or unit, for example. The implications of this are considered below.

(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

[61] The Respondent had no human resource expertise, given its size. Mr Pickering had experience in business management but was far from being experienced in human resource issues or being familiar with any of the provisions of the relevant legislation. This was manifest in the failure - at least initially - to appreciate the redundancy requirements of the Act. The evidence was also that the absence of this expertise was the reason why the Respondent did not afford the Applicant the benefit of the procedural fairness opportunities as discussed above. In the Respondent’s view, the Applicant’s behaviour had reached a point at which continuation of the employment relationship was not possible, and it acted without regard to further process, and in a manner in which it hoped would avoid a forensic examination of all the particular issues.

[62] Given the evidence, the absence of human resource expertise did result in a procedurally perfunctory dismissal process.

(h) any other matters that FWA considers relevant

[63] There are various other matters that the Applicant raised in the course of the proceedings. One of these was that she was a committed employee who worked beyond the ordinary boundaries in the interests of her employer, and that she had done so for a number of years (in various modes of employment).

CONCLUSION

[64] Notwithstanding some of the observations made about the Applicant’s conduct and performance of her duties and regardless of the findings I have made in relation to the human resource capabilities of the Respondent, on balance, and given the totality of the circumstances (which are most irregular) I find that the Applicant was harshly, unjustly or unreasonably dismissed from her employment with the Respondent. Because I have reached this finding I must consider remedy.

REMEDY

[65] Section 390 of the Act reads as follows:

Division 4—Remedies for unfair dismissal

390 When FWA may order remedy for unfair dismissal

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

(a) FWA 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) FWA may make the order only if the person has made an application under section 394.

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

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

(b) FWA 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.

[66] The Applicant is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise a discretion as to whether the Applicant can be reinstated. Section 391 of the Act provides as follows:

391 Remedy —reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

[67] I have no evidence before me of the Applicant’s views of the prospect of reinstatement. She has led no evidence in these proceedings in relation to remedy whatsoever.

[68] What I do know from the Applicant’s direct evidence is that when she met with Mr Pickering on Sunday 16 September 2012 she did not challenge or resist his decision to dismiss her. She gave as her explanation to me that she had “had enough physically and mentally anyway”. The Applicant also gave evidence, under my questioning, that she believed her position with the Respondent had led to her having “no life”:

“What was the content of your discussion?---David said that he’d been trying all weekend to convince Peter not to get rid of me but he said, “You know what Peter is like when he’s got an idea in his head. He doesn’t shift,” and he handed me my redundancy letter, if that’s what you want to call it, and I went, “Fair enough.”

Did you know why a decision had been taken to dismiss you?---Because I’d taken too much time off work, apparently.

So in that conversation it was explained to you, was it, that there was an issue with taking off work?---Yes, it was explained it would – well, David just – I can’t really recall that bit of the conversation very well. I think it went something like, “Peter thinks you’ve taken too much time off work and you haven’t covered the shifts, therefore he wants you out.”

Your response to this was just to say, “Fair enough”?---Yes. I’d been there for just over 19 months. I never saw my family because I was asleep in the day and I was at work at night. When I did take Saturdays, decided that Saturday was – even if we did have a production I’d cover it with somebody else. I tended to sleep the whole day because I needed to recover from long hours at night. It takes a while for that to get out of your system.

[…]

You’re on a leave day, according to your evidence, on the Sunday?---Yes.

You’re called to a meeting on the day which you say you’ve been given permission for leave?---Yes.

So you’re having a discussion with your employer about your leave over a three-day period which has been approved by Mr Pickering?---Mm.

Doesn’t that strike you as - - -?---Very odd.

Your only response was to say, “Fair enough”?---I think I was a little bit stunned and a little bit speechless but I think physically and mentally I’d had enough anyway. I was tired, I didn’t have a life and I think, you know, “Okay, whatever,” you know.

You didn’t say, “Hang on, you, Mr Pickering, approved my leave for the three days but you’re dismissing me because of this”?---No.

You didn’t say that to him?---I didn’t, no.” 2

(My emphasis)

[69] In such circumstances, reinstatement is not an appropriate outcome, nor would appointment to a commensurate position be an appropriate outcome in the alternative. I add that I have not considered the Applicant’s conduct in leaving so-called threatening telephone messages on Mr Pickering’s message service after she (the Applicant) had been dismissed. From what was led in evidence, the calls were hardly of a personal, threatening nature; they appear to have concerned statements that the Applicant would be pursuing legal options in relation to her dismissal. These were not matters relevant to the appropriateness of reinstatement or otherwise.

[70] Because I have found it would be inappropriate to reinstate the Applicant to her prior position or (for the same reasons) to appoint the Applicant to a commensurate position (which would not exist in the Respondent’s business in any event), I must consider the option of compensation. Section 392 of the Act provides 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), FWA 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 FWA considers relevant.

[71] In respect of the above matters that I must take into account I find as follows:

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

[72] There is no evidence that any order I might make for compensation would in some manner affect the Respondent’s viability.

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

[73] The Applicant was employed for some 19 months with the Respondent, and as such would be taken to have consolidated her employment. This is a not a long period of service and if anything has a neutral effect on my disposition as to whether or not to make an order.

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

[74] At the time of her dismissal the Applicant appears to have been close to resignation by her own evidence, as cited at some length above. The Applicant’s employment therefore is unlikely to have endured for any lengthy period at all. In my view, given the Applicant’s own claims, her employment would have continued no more than two weeks longer, at the very most. The remuneration the Applicant would have earned amounts to two weeks of her ordinary salary for that period.

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

[75] No evidence was received in this regard and the matter was not agitated by the Respondent. There is no imperative in the current case to consider such conduct in any event. The period of anticipated employment is very limited and falls within the notice period. In such circumstances, the importance of conduct by an applicant in mitigation is of negligible significance, as opposed to conduct in a lengthier period of anticipated employment.

(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

[76] No evidence was received in this regard and the matter was not agitated by the Respondent.

(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

[77] This is not a matter that requires any consideration as it is irrelevant to these proceedings. The order as made below specifies that payment must be made no later than seven days from the date of the order. There is insufficient certainty as to the time within that seven day period in which the payment is to be made for me to take into account a precise quantum of projected earnings. If the order did not need to be complied with for a longer period of time, then this statutory concern would warrant attention.

(g) any other matter that FWA considers relevant

[78] I make no deduction for contingencies as I do not see them as being relevant.

[79] Section 392(3) of the Act provides as follows:

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

[80] I discern in the evidence some relatively low level misconduct on the part of the Applicant, but I see no reason to discount the Applicant’s compensation as a consequence.

[81] Section 392(4) of the Act provides as follows:

Shock, distress etc. disregarded

(4) The amount ordered by FWA 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.

[82] My order for compensation makes no allowance for the above proscribed matters or considerations.

[83] Section 392(5) of the Act provides as follows:

Compensation cap

(5) The amount ordered by FWA 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.

[84] Section 392(6) of the Act provides as follows:

(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.

[85] The order that I propose to make is unaffected by the operation of the statutory cap as cited.

[86] Section 393 of the Act provides as follows:

393 Monetary orders may be in instalments

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

[87] The Respondent has made no application in the course of these proceedings to pay any amount I may order to be paid as compensation in instalments.

CONCLUSION IN RELATION TO REMEDY

[88] I order that the Applicant be paid two weeks of her ordinary salary, inclusive of superannuation. This amount is to be offset by any payments that have been made to the Applicant by way of payment in lieu of notice at the time of the dismissal. Any amount that must be paid to the Applicant must be paid to her usual account within 7 working days of the date of this decision (23 January 2013).

SENIOR DEPUTY PRESIDENT

Appearances:

Mrs M. Parker-Walford, Applicant

Mr D. Pickering, for the Respondent

Hearing details:

2013.

17 January.

Brisbane.

 1   See also PN68 below.

 2   Transcript of proceedings dated 17 January 2013, at PNS147-150; 161-167.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR533320>