Miss Samaka Sophia Ndege v World Gym Sunshine Pty Ltd

[2013] FWC 8434

[2013] FWC 8434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Samaka Sophia Ndege
v
World Gym Sunshine Pty Ltd
(U2012/14920)

COMMISSIONER LEE MELBOURNE, 12 NOVEMBER 2013

Application for unfair dismissal remedy - whether dismissal was harsh, unjust or unreasonable - Fair Work Act 2009 ss.387, 394.

[1] This matter involves an application to the Fair Work Commission (the Commission), made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Samaka Sophia Ndege (the Applicant) claims that she was unfairly dismissed from her employment with World Gym Sunshine Pty Ltd (the Respondent).

[2] The application was lodged 8 November 2012. The matter was listed for arbitration conference/hearing (the hearing) before me on 2 September 2013 to commence in Melbourne. The Applicant appeared by “Skype” as she was overseas for an extended period in the United States of America. The Applicant represented herself and gave evidence on her own behalf. The Respondent appeared in person at the Commission in Melbourne, represented himself and gave evidence on his own behalf.

[3] This matter was subject to preliminary hearings in order to determine a number of jurisdictional matters. Commissioner Lewin dealt with those objections and the objections were dismissed. 1 It was ultimately determined by the Commissioner that the Applicant completed the relevant minimum period of employment in order for her to be a person protected from unfair dismissal. The Commissioner also determined that at the relevant time, the Respondent was a small business within the meaning of the Act. The Commissioner also determined that the Applicant was dismissed on the 8th of October. The matter was subsequently listed for arbitration conference/hearing on the merits before me.

Background

[4] The Applicant was employed as a receptionist from 29 August 2011 until 8 October 2012. 2 She was employed as a casual employee. Her hours of work were the subject of evidence at the jurisdictional hearing. The hours of employment of the Applicant varied over the course of her 13 months or so of employment.

[5] The Applicant’s employment was terminated effective from 8 October 2012. 3 The Respondent spent considerable time at the merits hearing contesting the date of termination. However, it is clear that this matter had already been determined by Commissioner Lewin in the earlier proceedings.

[6] The Respondent’s submissions are that the Applicant was terminated for reasons of poor performance; that the Applicant was unwilling to perform the less desirable components of her role, such as chasing up clients for non payment of fees. Additionally, the Respondent contends that the Applicant spent too much time speaking with clients and spending time on Facebook when she was meant to be working.

[7] The Respondent claims that the Applicant was warned numerous times about that behaviour. The Applicant disputes that claim, and asserts that the reason given for her termination related to a change in the operation of the Respondent, that being a move to a 24/7 operation.

[8] The Applicant claims that the change of operations to 24/7 opening hours did not occur and was not a basis for the dismissal in any event. She claims the real reason for the dismissal was that she had made a claim for the non payment of wages and superannuation to which she was entitled. The Applicant claims the dismissal was unfair.

The law to be applied

[9] Section 385 of the Act sets out what constitutes an unfair dismissal

“Division 3—What is an unfair dismissal

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.

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

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

(c) the person was demoted in employment but:

(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.

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.”

[10] With regard to s.385(a), section 386 of the Act sets out the meaning of ‘dismissed’. Commissioner Lewin has already determined that the Applicant was dismissed on 8 October 2012.

[11] With regard to s.385(c), Commissioner Lewin in the earlier proceedings determined that the Respondent was a small business at the time of dismissal, within the meaning of section 23 of the Act. 4 Therefore, the application of the Small Business Fair Dismissal Code (the Code) is relevant to my determination and I will discuss this in more detail below.

[12] With regard to s.385(d), there was no suggestion that the Applicant’s dismissal was a case of genuine redundancy. Section 385(d) does not apply in this matter.

[13] Section 396 of the Act 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.”

[14] The application was not made within the period required in subsection 394(2) of the Act. Commissioner Lewin granted an extension pursuant to subsection 394(3) of the Act. 5 As discussed above, Commissioner Lewin also dealt with whether the Applicant was a person protected, and there was no evidence that the dismissal was a case of genuine redundancy. I must consider first however, whether the dismissal was consistent with the Code. If it is found that it was not, then I must consider if the dismissal was harsh, unjust and unreasonable applying the criteria in 385(b) of the Act.

The evidence:

[15] The Applicant provided no additional evidence related to the merits of the case in accordance with the directions issued by the Commission. In an email sent to the Commission on 12 July 2013, she stated that she relied on material presented at the earlier hearings related to jurisdiction. The Respondent filed two witness statements, one of Mr Wayne Mailing and a witness statement from Mr Tony Contreras. Mr Mailing and the Applicant gave oral evidence on the day of the hearing. Mr. Contreras did not appear at the hearing to attest to his statement. Mr. Contreras witness statement is in the form of an unsigned email.

[16] The Applicant sought to have a further witness appear, a Ms. Tamara Acevedo Molina. The Respondent objected to this witness appearing as there had been no notice and she had not taken part in the earlier proceedings. In the circumstances, I determined not to allow Ms. Acevedo Molina to appear as the Applicant had not provided any clear intention to bring further evidence and rather rely on materials already before the Tribunal in respect to the jurisdictional hearing.

[17] The Applicant asserts that when she commenced employment she initially worked every Saturday, Sunday and Monday but began to “pick up the slack” on Thursdays and Fridays when other receptionists were sick, on leave or had left the premises. The Applicant’s evidence is that she was contacted on 8 October 2012 by Mr. Contreras and informed that the Respondent’s business was changing to a 24/7 operation, and as such that they no longer required casual staff. 6 I note that Commissioner Lewin accepted this in reaching his decision in the jurisdictional matter.7 However, I have not relied on this conclusion and have made my determination on the basis of the evidence before me.

[18] As the Respondent did not in fact move to 24/7 operation until 1 September 2013 (almost eleven months after the dismissal), the Applicant claims this was not a basis for her to be dismissed. The Applicant claims, “…Wayne G. Mailing and the management of [the Respondent] were conspiring against me to make me leave the gym so they wouldn’t have to deal with my requests for back payment of my underpaid wages”. 8 I note that there is in evidence an email sent by the Applicant to [email protected] dated 29 July 2012 (prior to her dismissal) requesting payment for underpayment of wages. That email states;

“To whom it may concern,

I have noticed that in my pay slips that my regular payment of $20.93 has been incorrectly downgraded to $20.16 in the past 5 pay slips.

The last correct payslip I received was cheque no.1367 on payment date 11/05/12 and the first incorrect payment was the next one with the cheque no 1383 on payment date 25/05/12…”

[19] The Applicant also made a claim on the Respondent for underpayment after the dismissal.

[20] The Respondent’s evidence is that the Applicant was terminated as a result of poor performance. 9 In summary, the Respondent claims that Mr Contreras, “…the manager of the gym at that time”10 called him to say that the Applicant had spent an inappropriate amount of time talking to customers who were her friends, that Mr Contreras had spoken to the Applicant about that, and that she had replied “that’s the way I do my work”. There were no dates given as to when this conversation occurred. Mr Mailing for the Respondent claims that several days later, he observed the Applicant talking to one gym member for 30 minutes and that she was on her mobile telephone on Facebook. Mr Mailing stated in his witness statement that he decided to speak to the Applicant in person to state that she was spending too much time talking to a particular male customer rather than doing other work duties as required and that she was not allowed to use her phone during work hours. Mr. Mailing claims he asked the Applicant how she felt about this issue and that she had replied “bad luck” Mr Mailing stated that he had advised the Applicant that if she did not improve she would be given “another warning”.

[21] Mr. Mailing further claims that he and Mr Contreras conferred and decided that the Applicant should be given a first warning. Mr. Mailing claims that Mr Contreras spoke to the Applicant in clear language and gave her the first warning that if she did not improve her performance she would “jeopardize her role in the company”. There was no evidence as to the date this was said to have occurred.

[22] The second incident occurred a week or so later (again, there is no evidence as to what date this occured) when Mr Contreras contacted Mr. Mailing stating that the Applicant was still not attending to her work duties. The issue on this occasion was the Applicant allegedly indicating that she had not been ringing customers to follow up on unpaid fees as directed, as she didn’t like calling people. Mr. Mailing claims that he indicated to Mr Contreras that it was appropriate to give her a second warning about her performance. It is not clear from Mr. Mailing’s evidence that the Applicant was given this warning. This evidence is inconsistent with the statement of Mr. Contreras who states that the second warning was about continuous talking for long periods of time to some members.

[23] The third incident also involves Mr Contreras allegedly observing the Applicant speaking to the same customer she had been asked not to socialise with. Mr. Mailing claims that he himself then spoke to the Applicant about not wasting time with one customer and to attend to her other duties. It is said the Applicant replied “bad luck” again and that she was not going to do what was asked. At this time, Mr. Mailing states that he gave her a final warning. It is then claimed that over the following weeks her performance did not improve and that she was then terminated by Mr Contreras.

[24] Under questioning, the Applicant claimed that she had never been given warnings by either Mr Mailing or Mr Contreras. She contests almost entirely the version of events outlined in the written statement of Mr Mailing 11, the Applicant stating that “I never received any warnings, just conversations, but there were no warnings written, unwritten, formal or informal”.12 However, the Applicant did concede on cross examination that she had a conversation with Mr Contreras about the amount of time spent talking with some gym members or other staff.13 The Applicant contests the claims that she was involved in long conversations with one member.14 The Applicant recalled her conversation with Mr Contreras as follows; “…so Tony would say, “Make sure you tell the staff to go away if they’re talking to you and that you’re doing work” I said, “Okay, that’s fine”,…”.15

The Small Business Fair Dismissal Code

[25] If it is found that an employer is a small business employer as defined in the Act, they are subject to the Code. The Code states 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.”

[26] Should an employee claim that they have been unfairly dismissed, the employer must prove that they have complied with the Code. Evidence may include a completed check list, copies of written warnings, a statement of termination or signed witness statement.

[27] In this matter, the statement from Mr. Contreras is an email. It is not signed or attested to. Mr. Contreras did not appear to give evidence or to be cross examined.

[28] The email itself refers to three warnings being given. The dates given for each warning are inexplicably represented as: “xx/x/2012” and “xx/x/2013” and “xx/x/2013”. I am unable to determine what the purpose of these entries are in the absence of Mr. Contreras. It is common ground that Mr. Contreras terminated the Applicant’s employment though there is a contest as to the reason given. As earlier noted, the Respondent continues to dispute the date of termination despite the earlier ruling of Commissioner Lewin. I note the statement of Mr. Contreras does not mention the reasons for termination of the Applicant, the date or manner in which it occurred, only the alleged verbal warnings given. In the circumstances, it would be tenuous at best to rely on the statement of Mr. Contreras in making a determination in this matter.

[29] The statement of Mr. Mailing relies heavily on hearsay evidence as to things that Mr. Contreras claims he observed and said to the Applicant. I have considered that evidence but it would be inappropriate to attach any significant weight to it.

[30] However, the statement of Mr. Mailing does refer to him speaking to the Applicant directly about speaking to a customer for too long. Mr. Mailing also claims that it was he who gave the Applicant a final warning. The Applicant disputes that either of these events occurred.

[31] At the hearing before me, the Respondent made the claim that the Applicant had been given six warnings, three by him and three by Mr. Contreras. 16 The evidence of the Respondent on the day of the hearing that he himself had given three warnings was inconsistent with his written statement where he claimed to have given one warning. I found the evidence of Mr. Mailing to be lacking in credibility and unconvincing. There was no evidence on which I can rely from Mr. Contreras who is said to have taken on the performance management of the Applicant. The Applicant was adamant that there were no warnings given to her during her period of employment. I found the evidence of the Applicant to be forthright, consistent and plausible. Where there is a conflict in the evidence, I prefer the evidence of the Applicant.

[32] The Applicant conceded that she had been spoken to by Mr. Contreras about the length of time spent speaking to other staff and clients. She agreed that she used Facebook on her work computer during work time but disputes that she was ever spoken to about that matter. She disputed that she used her mobile phone at work. She denies that the conversation about speaking to clients was in the nature of a “warning”. While there is no doubt that she understood that she was asked to change this behavior, I am not satisfied that she was warned that she was at risk of dismissal. Further, her evidence supports a finding that where she was asked to change the behavior, in terms of time spent speaking to clients, she did so.

[33] To comply with the Code, the employee must be advised verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. On the balance of probabilities, I do not think that the Applicant was warned that her employment was at risk. Indeed, I think it more likely that the Applicant was given the reason for termination that she attests to, that is the change to the 24/7 operation.

[34] Having considered all of the evidence, I am not satisfied that the dismissal was consistent with the Code.

[35] As I have determined that the dismissal was not consistent with the Code, I will now consider if the termination was harsh, unjust or unreasonable (the last criteria of section 385 of the Act to be determined).

Section 387(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);

[36] On the Applicant’s version of events, the reason for the termination given over the phone by Mr. Contreras was that the Respondent’s business was moving to a 24/7 operation and that there would be less need for casuals and more need for full time employees. As already stated, I am satisfied that this was the reason given to the Applicant for the termination. However, the evidence of Mr. Mailing is that the 24/7 operation did not come into effect until approximately eleven months later on 1 September 2013. This cannot be said to have been a valid reason for termination at the time that it took effect, given the significant time lapse between the termination and the change in operations.

[37] As to the performance of the Applicant, the Applicant concedes that she was spoken to about the length of time spent speaking to other customers and clients. However, as per my consideration above related to the application of the Code, I am not satisfied that this matter was of such concern to the Respondent that they led to warnings being issued. The Applicant disputes the claim that she ever spoke to clients for anything like the length of time suggested. The Applicant conceded that she used Facebook on the computer during working time but that she was never spoken to about it. There was no evidence as to the length of time the Applicant spent on Facebook during working time. The Applicant conceded that she was advised at the commencement of employment to not be on her mobile phone but disputes she was using her phone during work time. 17 There were some references from Mr. Mailing about Mr. Contreras and himself observing the Applicant’s behaviour on cameras.18 Mr. Mailings evidence on this was vague and lacked credibility. Neither Mr. Contreras nor Mr. Mailing made any reference to making observations from cameras in their witness statements. As stated above, much of the evidence from Mr. Mailing was hearsay based on what Mr. Contreras is alleged to have observed and conversations Mr. Contreras is said to have had with the Applicant. However, as already mentioned, I do not have the benefit of any evidence from Mr. Contreras.

[38] No doubt, if an employee was to ignore a reasonable direction from the employer to cease engaging in personal activity on personal devices or on the work computer and to attend to their duties, then, depending on the surrounding circumstances this is likely to constitute a valid reason for termination,. In this case, the Applicant concedes that she was asked to change her behavior in respect to conversations with staff and that she did so. 19

[39] In order for a reason for termination to be valid it must be sound and defensible, it must not be capricious or fanciful. 20 In this case, there is not in evidence a sound and defensible reason for the dismissal. I accept the Applicant’s evidence that the actual reason for the dismissal given in the phone call from Mr. Contreras was that they were moving to a 24/7 operation. There is nothing in the witness statement of Mr. Contreras that deals with the actual termination phone call. The move to the 24/7 gym, on the evidence of Mr. Mailing did not occur until a year later.21 On that basis I am not satisfied there was a sound and defensible reason for the dismissal.

[40] The Applicant was asked to spend less time speaking to clients and staff and agreed to comply. She admits using Facebook during working hours but claims she was not spoken to about that use. There is no evidence that in doing so she failed to comply with a policy of the Respondent or a directive not to do so. The fact the Applicant was directed to change her behavior with respect to speaking to staff and clients and then did so is not a sound and defensible reason to dismiss her.

[41] Having considered all of the evidence, I do not consider the termination of the applicant to have been for a valid reason.

Section 387(b) - whether the person was notified of that reason.

[42] I am satisfied the applicant was notified of the reason for her dismissal verbally as being part of the move to the 24/7 operation.

Section 387(c) - whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[43] This is not a relevant criterion as I have found there is no valid reason for the dismissal. 22

Section 387(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.

[44] There was no refusal to allow a support person, though I note that the termination took place over the phone so the issue would not arise in that circumstance.

Section 387(e) - if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal.

[45] For the reasons outlined above, I am not satisfied that the dismissal did relate to unsatisfactory performance. Further, as per the reasons above where I considered the application of the Code, I am not satisfied that the Applicant was in fact warned about her performance. While the Applicant concedes she was spoken to about the amount of time spent speaking to customers, I am satisfied that the Applicant complied with this reasonable direction.

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

[46] This is a small business and had no human resources expertise and I have taken this into account.

Section 387(h) - any other matters FWA considers relevant.

[47] There are no other relevant matters.

Conclusion:

[48] For the reasons set out above, I do not consider that there was a valid reason for the termination. While the Applicant was asked to change her behavior regarding spending time with clients and other staff. I accept her evidence that she acceded to those requests. Moreover, I do not accept that the Applicant’s performance was the reason for the dismissal. I have taken into account that the business is a small business without human resources expertise. However, this factor does not outweigh the fact that there was no valid reason for the dismissal. In all of the circumstances I find the dismissal was harsh, unjust and unreasonable.

Remedy

[49] The relevant provisions of the Act pertaining to remedy are contained in section 390 of the Act:

“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.”

[50] It is also necessary to consider the Objects of Part 3-2 of the Act especially section 381(c) of the Act which provides that an object of that Part of the Act is to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

[51] The presumption in the legislation is that should a dismissal be found to be unfair, that compensation should only be considered if reinstatement is not appropriate.

[52] In this matter, the Applicant does not seek reinstatement. She is studying in the United States for a significant period and has secured other employment. 23 The Respondent claimed that they would be “happy” to reinstate the applicant.24

[53] Reinstatement in the circumstances of this case is not an appropriate remedy. While the Respondent claims they would be happy to reinstate the Applicant, the fact remains that the Applicant has successfully secured further employment and is currently studying in the United States and will continue to be absent for a number of months.

[54] Having determined that reinstatement is not appropriate I must consider what compensation, if any, is payable, in lieu of reinstatement.

[55] The Act provides for compensation as a remedy for unfair dismissal.

“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.

Note: subsection 392(5) indexed to $61,650 from 1 July 2012(need to update this amount

(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.”

[56] In all of the circumstances, I consider that the award of some amount of compensation is appropriate in this matter.

[57] In determining the amount of compensation, I must have regard to “all the circumstances of the case” including each of the paragraphs in section 392(2) of the Act as set out above. No one matter is paramount but regard must still be had to each of them. 25

[58] The general approach to the calculation of compensation was well set out by the Full Bench in Tabro Meat Pty Ltd v Kevin Heffernan 26. I will follow that approach in determining this matter.

[59] While I sought some information from the parties relevant to the criteria for determining compensation, I am not satisfied that I have sufficient information in order to make a determination. I therefore invite the parties to make further written submissions on that question. Directions for the filing of further submissions on the issue of compensation will be issued concurrently with this decision.

COMMISSIONER

Appearances:

S Ndege appeared on her own behalf

W Mailing from the respondent

Hearing details:

2013

Melbourne and Maryland (United States of America) (video hearing)

September 2

 1   [2013] FWC 3633.

 2   [2013] FWC 3633, [46]

 3   [2013] FWC 3633, [8]

 4   [2013] FWC 3633, [9]

 5   PR534958

 6   Exhibit A1

 7   [2013] FWC 3633, [44]

 8   Exhibit A1

 9   Exhibit M2

 10   Exhibit M2

 11   Exhibit M2

 12   PN1773

 13   PN1767-1777

 14   PN1815

 15   PN1775

 16   PN2049, 2226, 2341.

 17   PN1825, 1891, 1903.

 18   PN1894, PN2048

 19   PN1775

 20   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

 21   PN2300 - 2305

 22   Chubb Security Australia Pty Ltd v Thomas Print S2679

 23   PN2346

 24   PN2348

 25   Tempo Services Limited v Klooger and Others, PR953337, [22]

 26   [2011] FWAFB 1080

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