Mohammad Nabi v High End Timber Finishing Pty Ltd T/A South Eastern Timber Finishing

[2018] FWC 5878

[2018] FWC 5878

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohammad Nabi
v
High End Timber Finishing Pty Ltd T/A South Eastern Timber Finishing
(U2018/2764)

COMMISSIONER WILSON MELBOURNE, 26 SEPTEMBER 2018

Application for an unfair dismissal remedy.

[1] Mohammed Nabi was employed by High End Timber Finishing Pty Ltd, trading as South Eastern Timber Finishing (High End Timber Finishing Pty Ltd) on 17 September 2018 until his dismissal which took effect on Friday, 9 February 2018. This decision concerns Mr Nabi’s application for unfair dismissal arising out of the circumstances of the termination of his employment.

[2] Unfortunately the Respondent in this matter, High End Timber Finishing Pty Ltd chose not to attend or provide submissions to the Commission in relation to Mr Nabi’s application.

[3] The Commission was unable to conduct a conciliation of the matter due to lack of response from the Respondent, as such the matter was set down for jurisdictional hearing before Commissioner Cirkovic on 26 June 2018 for determination of an extension of time matter which was required, given that it was apparent on the papers filed by Mr Nabi that his dismissal had taken place more than 21 days prior to the filing of the application. Commissioner Cirkovic proceeded to determine that matter, again without any attendance or submissions on behalf of High End Timber Finishing Pty Ltd, with the result of the Commissioner’s determination being a decision to extend the time for the filing of Mr Nabi’s application.

[4] Following that determination, the matter was listed for a merits hearing with Directions being given to both parties for filing of their respective materials. So far as is relevant to this matter the Applicant was given until 16 July 2018 to file materials relating to his case and the Respondent was given until 6 August 2018 to file any materials it wished to be considered by the Commission in respect of its case. No such material has been filed by the Respondent in response to these Directions.

[5] Once the matter was allocated to me for the making of a determination upon the merits of the application, communication with the Respondent has been endeavoured on several occasions. On 16 August a letter was sent by registered and express post to the Proper Officer of High End Timber Finishing Pty Ltd. A further letter was sent by registered and express post on 17 August 2018. Finally, an email was sent from the Commission to the Respondent on 30 August 2018, the day before the hearing.

[6] The Commission’s correspondence by letter and email are in the same terms drawing to the Respondent’s attention that it was required to file submissions and that none had been received. High End Timber Finishing Pty Ltd was advised that it should submit any submissions and documents upon which it sought to rely immediately and that should there be a failure to provide submissions in this matter or to attend proceedings that this will result in the matter continuing to progress and be heard in the Respondent’s absence. The correspondence strongly advised the Respondent to provide a written response and comply with the Directions and to immediately seek legal advice on the matter and the Directions which had been given.

[7] As a result of the foregoing steps, I am satisfied that all reasonable steps have been taken to ensure that High End Timber Finishing Pty Ltd is both aware of these proceedings and that it has been given an opportunity, on numerous occasions, to respond and put forward such evidence and materials as it desires the Commission to take into account. I was satisfied that in all the circumstances it was appropriate for the Commission to proceed to hear and determine Mr Nabi’s application in the absence of any submissions or appearance on behalf of High End Timber Finishing Pty Ltd.

[8] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. In relation to the elements within s.396:

•  I note that Mr Nabi’s unfair dismissal application was made out of the time period allowed for in s.394 of the Act an extension of time for the making of his application was granted by Commissioner Cirkovic on 26 June 2018; 1

•  No question arises as to whether Mr Nabi was a person protected from unfair dismissal since he was first engaged in the business on 17 September 2014 and continued employment on a full-time basis until 9 February 2018;

•  Due to the size of the business from which he was dismissed it will be necessary for consideration to be given to whether the Mr Nabi’s dismissal was consistent with the Small Business Fair Dismissal Code; and

•  Consideration will also need to be given to whether his dismissal was a genuine redundancy within the meaning of the Act.

FORM OF PROCEEDINGS

[9] Since Mr Nabi was self-represented and required assistance throughout the proceedings from an interpreter and there was no representation for or on behalf of the Respondent, the matter proceeded before me in the form of a determinative conference.

[10] For the reasons set out below, I have found that Mr Nabi’s dismissal was neither consistent with the Small Business Fair Dismissal Code nor a genuine redundancy. I have also found that in all the circumstances he was unfairly dismissed and that the appropriate remedy in the circumstances is an award of compensation.

BACKGROUND

[11] Mr Nabi speaks and understands very little English and moved to Australia in May 2012, having spent time on Christmas Island. Having moved to Melbourne, he worked for the Respondent in the capacity of a quality control and spray painter from 17 September 2014. Immediately prior to his termination of employment, Mr Nabi was being paid a base rate of pay of $27 per hour with a 9.5% superannuation contribution in addition to that payment.

[12] On the basis of the material provided by Mr Nabi it is likely that his employment was regulated by the manufacturing section of the Timber Industry Award 2010 (the Award). Clause 9.1 of that Award requires that there be consultation with an employee on matters which have significant effects, including the potential redundancy of an employee.

[13] Mr Nabi was notified of the impending dismissal on 31 January 2018 and his termination of employment took effect on 9 February 2018 with the reason for the termination of employment being indicated on the Centrelink Employment Separation Certificate as “employer ceased trading 9/2/18”.

[14] Since the Respondent chose not to be involved in these proceedings and Mr Nabi speaks no English there has inevitably been some difficulty in ascertaining the full circumstances of the period of employment. Payslips and Australian Taxation Office PAYG statements show that when Mr Nabi was first engaged by the business in 2014, the legal entity of the employer was South Eastern Timber Finishing Pty Ltd. The name of the employing entity changed with effect from 1 July 2017 to High End Timber Finishing Pty Ltd. Both entities have different ABNs. It appears from what Mr Nabi has had to say to the Commission that while the legal employing entity changed in July 2017, the ownership and trading name of the business remained the same.

[15] Mr Nabi gave evidence to the effect that the operations of the Respondent were small with it employing no more than six employees including himself at the time his employment ended. As a result, a finding is available to the effect that the Respondent, High End Timber Finishing was a small business employer within the meaning of the Act (s.23).

[16] Mr Nabi’s evidence is that he and the other employees of the business were informed of their termination of employment in a short meeting which took place in the lunchroom at the trading premises on 31 January 2018, in which one of the managers in the business, Stuart Beasley, spoke to the employees. In attendance with Mr Beasley was another person who Mr Nabi new to be one of the owners of the business. Mr Nabi’s evidence is that there were seven employees in the kitchen, together with two others, Mr Beasley and one of the owners. Mr Nabi speaks very little, if any, English, and so did not understand the things which were being said by Mr Beasley at the meeting. When Mr Beasley had finished what he had to say, Mr Nabi turned to one of his colleagues, ethnically Indian, who relayed to Mr Nabi in Hindi what had transpired. At that time Mr Nabi learned that Mr Beasley had said words to the effect that “we cannot support the business anymore” and that as a result everyone would lose their job and the business would be closing in a week’s time.

[17] Over the following week Mr Nabi and other employees continued to work in the business. Their work included cleaning machinery and the premises.

[18] In the course of the final week of employment and possibly on the final day, 9 February 2018, Mr Nabi learned through someone else that a person by the name of “Simon” had bought the business’s belongings and equipment.

[19] Having had his employment terminated Mr Nabi has since obtained other employment within about a month of leaving High End Timber Finishing Pty Ltd. The basis of his new employment is as a casual employee earning $30 per hour, in contrast to the permanent status he had with his former employer and his pay rates in 2018 of $27 per hour. His new position involves essentially the same duties as he is performing at High End Timber Finishing Pty Ltd, that is spray painting and finishing off timber products. Both the old and new employment provides 9.5% superannuation payments on his behalf to Australian Super. In between leaving his original employment with High End Timber Finishing Pty Ltd and starting with his present employer Mr Nabi also worked for about three days somewhere else but found that the pay rate was too low for the work that he was undertaking.

[20] In the course of preparing this matter for hearing, on 12 July 2018 a person rang the Chambers of Commissioner Cirkovic who had been earlier dealing with the extension of time application in respect of Mr Nabi’s application and left a voice message which included the following information. Firstly, it was confirmed that correspondence had been received from the Commission on a fax number previously associated with High End Timber Finishing Pty Ltd. The person advised that “we” have taken over the business and premise and none of “those” people work with us anymore with his belief being that High End Timber Finishing Pty Ltd had gone into liquidation and been wound up as a consequence. He requested that the Commission no longer use this fax number to contact the Respondent and to please find alternative communication details.

[21] Mr Nabi’s evidence also includes that of the people he once worked with at High End Timber Finishing Pty Ltd, he only knows what has happened in the employment of two of them and that neither of those people are working in the business now operating from the same premises.

[22] In forming my views about Mr Nabi’s application, I have had regard to the material he filed, as well as publicly available information both in respect of the fate of the named Respondent, High End Timber Finishing Pty Ltd, and information on a website operating the business named as “South East Timber Finishing”:

•  Firstly, the payslips submitted by Mr Nabi, all from the 2017-2018 financial year, are issued by High End Timber Finishing Pty Ltd, and include a logo “South Eastern Timber Finishing”;

•  Secondly, the ASIC Company register indicates that High End Timber Finishing Pty Ltd remains registered with no indication of winding up or cancellation orders;

•  Thirdly, the website referred to uses a logo stylistically identical t or similar to that included on Mr Nabi’s payslips and states that “South Eastern Timber Finishing are proud to announce we are now part of the Simmonds Polishing group” and that “Simmonds Polishing (Formally South Eastern Timber Finishing) is a family owned and operated business. For over 35 years we have built up a large data base of clients, from small woodworking businesses to larger scale manufacturing companies”; and

•  Lastly, the same website provides as contacts the street address referred to within Mr Nabi’s originating application and the email address given to contact that location is “[email protected]”. The same website provides a contact telephone number identical to the phone number provided on the Employment Separation Certificate given to Mr Nabi at the time of his termination of employment.

SMALL BUSINESS FAIR DISMISSAL CODE

[23] Section 396 of the Act requires that consideration be given to whether a dismissal was consistent with the Small Business Fair Dismissal Code before turning to consideration of the merits.

[24] I am satisfied on the evidence that High End Timber Finishing Pty Ltd was a small business within the meaning of the Act. However, I am not satisfied that Mr Nabi’s dismissal was consistent with the Code. That is for the reason that the Code contains two parts with Mr Nabi’s reason for dismissal fitting neither part. The first part deals with a dismissal justifying summary dismissal. Plainly nothing is raised in relation to Mr Nabi’s dismissal that would give rise to the view that he was dismissed for reason of serious misconduct or other matters that may reasonably lead to summary dismissal. Similarly a finding is not available to be made that Mr Nabi was dismissed under the “other dismissal” category for the reason that there is no evidence that Mr Nabi’s work performance contributed to the reason for his dismissal. Instead the only consideration associated with his dismissal appears to be a desire on the part of the employer to dispense with his services for reason of the change in its operating structure.

GENUINE REDUNDANCY

[25] Section 396 also requires a consideration of whether a dismissal was a genuine redundancy prior to a consideration of the merits of the dismissal. The meaning of genuine redundancy is set out within s.389. Three relevant tests are set out within the section; firstly a person’s employer must no longer require their job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; the employer must complied with any obligation in a modern award to consult about the redundancy; and a matter is not a genuine redundancy that would have been reasonable in all the circumstances for the person to be redeployed either within the employer’s enterprise or that of an associated entity.

[26] I am not satisfied in this case that there has been any consultation with Mr Nabi about his impending dismissal and what can be done about it. Clause 9.1 of the Timber Industry Award 2010 provides an obligation on employers to consult about matters that have significant effects upon employees, including the loss of job opportunities or potential terminations. The evidence does not allow a finding that there was any consultation as envisaged by that clause. As a result, it is not possible for a finding to be made that Mr Nabi was dismissed for reason of genuine redundancy.

LEGISLATION

[27] As a result of the foregoing findings it is necessary to consider whether Mr Nabi’s dismissal was unfair for other reasons. Consideration must therefore be given to the criteria within s.387 of the Act, which are as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

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

(b) whether the person was notified of that reason; and

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

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

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

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

CONSIDERATION

[28] Determination of whether Mr Nabi’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.

[29] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way: 2

“[28]The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:

•  a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced; 3

•  a reason would be valid because the conduct occurred and justified termination; conversely the reason might not be valid because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour); 4

•  it is not necessary to demonstrate “serious misconduct” or misconduct sufficiently serious to justify summary dismissal in order to establish a valid reason for dismissal; 5

•  the existence of a valid reason to dismiss is not assessed by reference to a legal right to dismiss 6 (so that, for example, where summary dismissal has occurred, it is not necessary to determine whether the right of summary dismissal was legally available); and

•  the criterion for a valid reason is not whether serious misconduct as defined in reg.1.07 has occurred, since reg.1.07 has no application to s.387(a) (although a finding that misconduct of the type described might well ground a conclusion that there is a valid reason for dismissal based on the employee’s conduct). 7” (original references)

[30] I will deal with each of the criteria within s.387 in turn.

(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)

[31] Determination of a valid reason involves an examination of whether the reason given is “sound, defensible or well founded”, within the overall context of the employment relationship”

“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, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.” 8

[32] The evidence, such as it is, allows a finding that High End Timber Finishing Pty Ltd traded as South Eastern Timber Finishing and that on or around 9 February 2018 that entity ceased to operate the business handing over the assets of the business, including its trading name and equipment to the Simmons Polishing group which then commenced operating the business. From what is before the Commission the work of the new business appears not dissimilar from that operated by High End Timber Finishing Pty Ltd.

[33] The most significant change in that period, apart from the change in ownership, is that the seven High End Timber Finishing employees, including Mr Nabi, had their employment terminated.

[34] There was no consultation with them about the possibility of transferring their employment to the new owner and there appears to have been no consideration given to that subject either. There is no evidence before the Commission about the circumstances by which the new entity came to assume the operations, location and equipment of the old or when negotiations over that matter may have commenced or concluded. It is however evident that the operations of High End Timber Finishing Pty Ltd ended on the day Mr Nabi was dismissed on 9 February 2018. It is also evident, at least on the publicly disclosable information, that the entity has not been the subject of winding up or liquidation proceedings.

[35] For reasons which are unknown to the Commission, the owners of High End Timber Finishing Pty Ltd decided, about a week out from the change merely to advise their employees and Mr Nabi in particular that the business would be closing in a week’s time. Against that circumstance must be a consideration of the terms of the Timber Industry Award 2010. These terms required, in the case of Mr Nabi that High End Timber Finishing Pty Ltd should have at least consulted about the significant effects of the changes with their employees, discussing any potential measures to avert or mitigate the adverse effects of such change with employees and for the employees to then in turn have been be given the opportunity to provide prompt consideration to any matters raised through this process. Moreover, should it have ultimately been determined after such consultation that redundancy was the only option available then greater notice of termination should have been given than merely one week (s.119 the Act).

[36] In a circumstance in which plainly consideration is being given to the ongoing operation of the business under the same name, from the same premises, but with a different owner it must be regarded that the decision to dismiss within the week, without consultation, the giving or payment of the required notice of termination or consideration about transference to an ongoing employer was something other than a reason which was “sound, defensible or well founded”.

[37] It follows therefore that High End Timber Finishing Pty Ltd did not at the time it dismissed Mr Nabi have a valid reason for his termination of employment.

(b) whether the person was notified of that reason

[38] The evidence supports a finding that Mr Nabi was notified of the reasons for his dismissal, therefore this is a neutral consideration in my decision.

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

[39] Mr Nabi’s dismissal does not relate to his capacity or conduct and so this criterion is a neutral consideration.

(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

[40] There was no refusal by High End Timber Finishing Pty Ltd for Mr Nabi to have a support person in any discussions that were had about the future of his employment. When he was advised of his dismissal he was not aware that there was going to be a discussion about his future employment. Accordingly, this factor is a neutral consideration in my decision.

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

[41] Mr Nabi was not dismissed because of unsatisfactory performance and so this factor is also a neutral consideration in my decision.

(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

[42] As set out above, High End Timber Finishing Pty Ltd is a small business. While there is limited evidence available, it is likely in the circumstances that the size of High End Timber Finishing Pty Ltd impacted upon the procedures followed in effecting Mr Nabi’s dismissal.

(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;

[43] There is no evidence before me about the absence or availability of dedicated human resource management specialists or expertise in the enterprise and so this criterion is also a neutral consideration in my decision.

(h) any other matters that the FWC considers relevant

[44] The Commission does not consider that there are any other matters requiring to be dealt with in this decision.

REMEDY

[45] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are as follows:

“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.

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 the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC 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.

Order to restore lost pay

(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

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.”

[46] Pursuant to subsection 390(3) of the Act an order for the payment of compensation to a person must not be made unless the Fair Work Commission “is satisfied that reinstatement of a person is inappropriate” and also that the Commission “considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[47] Two matters arise for consideration in relation to the prospect of reinstatement of Mr Nabi. Firstly the evidence is that High End Timber Finishing Pty Ltd ceased trading some months ago and so for that reason alone reinstatement is an unlikely possibility. Further, Mr Nabi has obtained employment elsewhere since leaving the Respondent and therefore I am again satisfied for that reinstatement would be inappropriate. I am satisfied in all the circumstances that it instead be appropriate that I give consideration to an order the payment of compensation.

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

[48] There is no evidence before me about the ongoing operations of High End Timber Finishing Pty Ltd. It is noted that while the evidence suggests that the company has not been operating as High End Timber Finishing Pty Ltd since Mr Nabi’s dismissal on 9 February 2018 rather as a subsidiary of Simmons Polishing Group knowns as South Eastern Timber Finishing, that neither does it appear to have taken any steps taken to wind up or liquidate the company. As such, this is a neutral consideration in my decision.

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

[49] Mr Nabi’s service with High End Timber Finishing Pty Ltd was relatively short, being just over three years between September 2014 and February 2018.

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

[50] In matters in which compensation is a consideration, the Commission ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to “anticipated period of employment”. The Full Bench of the Australian Industrial Relations Commission has observed the following in relation to these matters:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

". . . we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law."

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.”  9 (endnotes omitted)

[51] The employment Mr Nabi now holds appears to have commenced in the week of 8 March 2018 and to have been on the basis of up to 38 hours per week. Payslips have been tendered by Mr Nabi for some of the weeks between 8 March 2018 and the date of the hearing, 31 August 2018 and those payslips indicate that he worked 38 hours per week for most of the weeks, and 34.5 and 30 in two of the weeks. This evidence allows a finding that since 8 March 2018 Mr Nabi has been mostly fully employed, albeit on a casual basis instead of a full-time basis. The amount paid for the work performed for three days for an interim employer is not for consideration by the Commission, but that payment can be dealt with, for the purposes of compensation at least, by assuming that Mr Nabi’s loss was for the period between 9 February 2018 and 8 March 2018 and that since that date he has been fully employed, albeit on a casual basis.

[52] I find therefore that the anticipated period of employment, for the purposes of assessment of compensation was four weeks.

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

[53] I accept that Mr Nabi took all appropriate efforts to mitigate his loss from being dismissed. Demonstrably he was diligent in seeking out and obtaining alternative employment within a short period with employment offers being made from two different employers.

(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

[54] After losing his job at High End Timber Finishing Pty Ltd Mr Nabi worked for a short time, three days only, for another business but found the pay to be too low. He then obtained employment with another company as a casual employee on a rate of $30 per hour, in contrast to the rate of $27 per hour he was paid by the Respondent as a permanent full-time employee. Both in respect of employment with the Respondent and with his ongoing employer, Mr Nabi has been paid superannuation at the statutory rate. It is to be noted that the Commission is not aware of the earnings that Mr Nabi received from the interim employer.

(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

[55] It is noted that at the time of the hearing Mr Nabi was employed and was likely to continue to be employed until these proceedings were determined.

[56] I find the compensation I propose does not need to be adjusted to take account of income he might receive between the making of the order for compensation and the actual compensation.

(g) any other matter that the FWC considers relevant.

[57] I am not aware of any other considerations which might be relevant to the order of compensation, and have considered all of the circumstances of the case in determining an appropriate remedy.

[58] Section 392(3) requires that if the Commission is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

CONCLUSION AND ORDERS

[59] After consideration of the foregoing issues, I find that the Applicant was dismissed and that it was unfair within the meaning of the Act.

[60] I find that reinstatement is not an appropriate remedy in this case.

[61] I find that compensation is appropriate.

[62] The approach by the Commission in these matters, and which I follow here, is to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5). 10

[63] The Full Bench in the Haigh v Bradken Resources Pty Ltd 11 has recently clarified the assessment of compensation and connected issues that require dealing with, including the deductions of amounts for misconduct, and consideration of the compensation cap. So far as is relevant to this matter, the Full Bench found:

“[10] The frequently quoted case on compensation calculations is Sprigg v Paul Licensed Festival Supermarket in which a Full Bench of the Australian Industrial Relations Commission (AIRC) confirmed the following steps in determining compensation under the unfair dismissal provisions of the Workplace Relations Act:

“1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated,

2. Deduct monies earned since termination,

3. Deductions for contingencies,

4. Calculate any impact of taxation,

5. Apply the legislative cap.”

[11] The legislation has been amended since that time by permitting a reduction in an amount otherwise payable if an employee’s misconduct contributed to the employers decision to dismiss. The Full Bench decision in Sprigg has also been the subject of comment by other Full benches. In Smith v Moore Paragon a Full Bench of the AIRC said:

“COMMENT IN RELATION TO THE GUIDELINES IN SPRIGG

[32] It seems to us that the amounts arrived at by the application of the guidelines in Sprigg in the present matter are on their face manifestly inadequate for employees with the length of service of the Appellants, the circumstances of their dismissal and their poor prospects for future employment. This causes us to sound a warning in relation to the application of Sprigg. The guidelines laid down in Sprigg and refined in Ellawala v Australian Postal Commission are clearly designed to serve the proper and desirable purpose of fostering uniformity and consistency in decision-making by individual members of the Commission when assessing compensation pursuant to s.170CH(6). However, those guidelines are not a substitute for the words of the Act. By virtue of s.170CH(2), any remedy ordered by the Commission must be a remedy that the Commission considers "appropriate" having regard to all the circumstances of the case including the matters set out in s.170CH(2). Section 170CH(6) confers a general discretion "if the Commission considers it appropriate in all the circumstances of the case" to "make an order requiring the employer to pay the employee an amount ordered by Commission in lieu of reinstatement" subject to the Commission having regard "to all the circumstances of the case including" the matters listed in s.170CH(7) - the same list of matters set out in s.170CH(2) - and subject also to the `cap' provided for in s.170CH(8) and (9). If an application of the guidelines in Sprigg yields an amount which appears either clearly excessive or clearly inadequate, then the member should reassess any assumptions or intermediate conclusions made or reached in applying the guidelines so as to ensure that the level of compensation is in an amount that the member considers appropriate having regard "to all the circumstances of the case" including the matters listed in s.170CH(7) and subject to the `cap' provided for in s.170CH(8) and (9). In this context it should be borne in mind that the result yielded by an application of the Sprigg guidelines may vary greatly depending upon particular findings in relation to the various steps including, in particular, step one, which necessarily involves assessments as to future events that will often be problematic.”

[12] Full Benches of the Fair Work Commission have applied the approach in Sprigg generally in Tabro Meat Pty Ltd v Heffernan, Read v Golden Square Child Care Centre and Bowden v Ottrey Homes Cobram. It is clear from those authorities that any deduction on account of misconduct is also applied before the application of the legislative cap. One further clarification is needed. The assessment of the amount the employee would have received if the employment had not been terminated is referable to the entire circumstances including the basis on which the termination was found to be unfair. Where a procedural defect is the main reason for the termination being held to be unfair, this is a factor to be taken into account in determining the estimate of loss arising from the unfair dismissal.” 12 (references omitted)

[64] The Full Bench in Bowden v Ottrey Homes 13 noted that contingencies may not be appropriate to deduct with all of the projected period of continued employment having passed.14 As a result, I find there are none that ought be taken into account in this matter.

[65] I accept that Mr Nabi’s weekly payments at the time of dismissal were $1,026 and that he was eligible for a further 9.5% superannuation payment on his behalf. The Commission’s order for compensation will be for a payment of 4 weeks compensation at the rate of $1,026 per week, with a further amount of 9.5% for the purposes of superannuation. My calculation of the amount payable is set out in the following table:

1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated,	4 weeks projected lost income at the rate of $1,026 per week 15	$4,104
9.5% Employer superannuation contribution on above	+ $390
Deduction for misconduct 16	- $0
2. Deduct monies earned since termination,	$0
3. Deductions for contingencies,	$0
TOTAL	$4,494
4. Calculate any impact of taxation,
5. Apply the legislative cap.”

[66] The total amount of $4,494 does not exceed the compensation cap applying at the time of dismissal.

[67] An order requiring High End Timber Finishing Pty Ltd to pay to Mr Nabi the total amount $4,494 taxed according to law, is issued in conjunction with this decision. The total will be ordered to be split between a payment directly to him, and a payment to his superannuation account, on his behalf.

COMMISSIONER

Appearances:

Mr Mohammed Nabi on his own behalf.

Hearing details:

2018.

Melbourne:

31 August.

Printed by authority of the Commonwealth Government Printer

<PR700524>

 1   [2018] FWC 3579.

 2   Titan Plant Hire Pty Ltd v Shaun Van Malsen[2016] FWCFB 5520.

 3   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 4   Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].

 5   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].

 6   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].

 7   Sharp v BCS Infrastructure Support Pty Limited[2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].

 8   Selvachandran v Peteron Plastics (1995) 62 IR 371, p.373.

 9   Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at [33] and [34].

 10   See Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 [33].

 11   [2014] FWCFB 236.

 12   Ibid, at [10] - [12].

 13 (2013) 229 IR 6, [2013] FWCFB 431.

 14 Ibid, at [54].

 15  

 16