Mr Carlo Mantineo v Continental Furniture Pty Ltd

[2020] FWC 2607

[2020] FWC 2607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Carlo Mantineo
v
Continental Furniture Pty Ltd
(U2020/1450)

DEPUTY PRESIDENT MANSINI MELBOURNE, 31 JULY 2020

Application for an unfair dismissal remedy – no appearance by or on behalf of respondent – dismissal harsh, unjust or unreasonable – compensation ordered.

[1] Mr Carl Mantineo was employed by Continental Furniture Pty Ltd (Respondent) for almost 30 years prior to his dismissal on 20 January 2020. On 10 February 2020, Mr Mantineo filed this application alleging that his dismissal was harsh, unjust and unreasonable and seeking a remedy of compensation.

[2] I have determined that the Applicant was unfairly dismissed and that an order for compensation is appropriate. The reasons for that decision follow.

Procedural context

[3] Notwithstanding the Commission’s efforts to communicate with the Respondent and provide reasonable procedural assistance, the Respondent has failed to comply with various Commission directions and ultimately elected not to attend the hearing or file any materials in support of its response to the application. A summary of the Respondent’s instances of non-compliance and participation follows.

[4] The initial conciliation was not able to proceed as listed because the Respondent could not be reached on the telephone number provided by Mr Spiekman (Director of the Respondent).

[5] The Respondent did not file its response to the claim by 13 March 2020 (as initially requested by the Commission) or 19 March 2020 (pursuant to a further request).

[6] On 16 March 2020, the Commission received an email from a Mrs Pam Spiekman on behalf of her husband, which said that her husband had dementia, they were in debt and the landlord was auctioning their equipment and remaining stock. It said she had tried to contact the Applicant’s wife hoping to “sort something out”. On 1 May 2020, a handwritten letter 1 was received in which Mrs Spiekman reiterated these claims.

[7] The Respondent did not file evidence or submissions by 28 April 2020 as directed. 2

[8] On 6 May 2020, a procedural mention was convened by telephone before me. Mrs Spiekman attended on behalf of the Respondent. Mrs Spiekman told the Commission that the factory has been shut, the equipment is being sold, she and her husband (the sole Director) have no money and could not afford to place the Respondent company into liquidation. At the same time, she said that she needed to and would consider voluntary liquidation. The Applicant’s representative maintained that there was no evidence to support Mrs Spiekman’s contentions and, even if those contentions were accepted, it is apparent that the company continues to exist – therefore there is no basis to dismiss, and the Applicant wished to press, this application. The parties consented to attempt conciliation prior to the hearing. The Respondent’s non-compliance with the Commission’s prior directions, and the importance of compliance going forward, was discussed. The Respondent was also notified that, in the absence of its participation in the proceedings, a determination would be made on whatever evidence was before the Commission. Mrs Spiekman confirmed her email address as the appropriate point of contact for the matter going forward.

[9] On 8 May 2020, the parties attempted a conciliation conference before Deputy President Clancy. Mrs Spiekman participated on behalf of the Respondent. As the matter was not resolved, the parties were informed that the hearing would proceed as listed, by telephone at 10am on 19 May 2020.

[10] On 13 May 2020, the Respondent was ordered to produce official records of the Respondent having been placed into voluntary liquidation (if any) and certain business and financial records by 10am on 18 May 2020. 3 The Commission’s correspondence also confirmed the hearing details and again invited the Respondent to tell its side of the story. The Respondent was again placed on notice that, in the absence of a response to the claim, the matter may be determined on whatever materials are before the Commission.

[11] The Respondent did not object to, and nothing was produced in compliance with, the order to produce.

[12] The Respondent did not attend the hearing on 19 May 2020 and no adjournment request was made. That was the case despite the Commission having notified the Respondent of the hearing details at its nominated email address(es) on 16 March, 20 March, 30 April and 13 May 2020, and by telephone on 6 May 2020 and 8 May 2020 (at a procedural mention and conciliation conference, respectively).

[13] At the hearing on 19 May 2020, Mr Mantineo gave evidence that he had received a text message from Mrs Spiekman on 12 May 2020 in which she indicated that she and her husband did not intend to attend the hearing before the Commission.

[14] On 20 May 2020, the Commission emailed the Respondent at its nominated email addresses and confirmed that the hearing had proceeded in its absence, attached a copy of the transcript and invited the Respondent to file anything it wished to say by 12pm on 22 May 2020. The Respondent was again notified that, in the absence of its participation in the proceedings, the application would be determined on the basis of the materials that are before the Commission.

[15] On 21 May 2020, Mrs Spiekman telephoned the Commission. The Commission’s file note records that Mrs Spiekman said words to the effect that she had not intended to attend the hearing and that neither she nor her husband had anything further to say about the matter. Mrs Spiekman was referred to the Commission’s email of 20 May 2020 and reminded that any response was due by 12:00pm on 22 May 2020.

[16] No response was received by 12:00pm on 22 May 2020. No further correspondence or communication has been received from Mrs Spiekman, Mr Spiekman or any person on behalf of the Respondent.

[17] Prior to the hearing, Mr Mantineo filed a witness statement and an outline of submissions in accordance with the Commission’s directions. At the hearing, Mr Mantineo sought permission to be represented by a lawyer, which was not opposed and was granted pursuant to s.596 of the Act. Mr Mantineo gave evidence at the hearing on affirmation, including in response to my questions of him.

[18] Notwithstanding the Respondent’s non-attendance at the hearing, I am satisfied that the Respondent was aware of the application and the fact that it was listed for hearing before the Commission on 19 May 2020. The Respondent was given every opportunity to participate in these proceedings in a meaningful way. Even after the hearing, which the Respondent did not attend, the Respondent was given a copy of the transcript and a final opportunity to respond prior to the Commission determining the application and no response was received.

[19] Having regard to the events summarised above, it is clear that the Respondent elected not to participate in the proceedings. The Respondent was aware that it was required to attend the hearing and give evidence about its circumstances, and afford the Applicant the opportunity to test that evidence, if it wished those matters to be taken into account in determining the application. It was ordered to produce documents relevant to its circumstances and did not do so. That being the case, it is appropriate that I determine the application on the basis of the evidence of Mr Mantineo.

The Applicant’s case

[20] A short summary of Mr Mantineo’s evidence 4 follows.

[21] Mr Mantineo is 63 years old. He commenced making furniture in the Respondent’s factory and, in 1991, was appointed Product Manager by Mr Spiekman. In that role, he reported to Mr Spiekman and was responsible for the Respondent’s production including product design, sourcing materials, servicing of machinery, packing for delivery, estimating and preparing budgets, training and supervising production employees and supporting Mr Spiekman in a range of functions including after hours. Immediately prior to his dismissal, Mr Mantineo was earning $53,352 gross per annum plus superannuation. 5

[22] In late 2019, Mr Mantineo commenced a period of four weeks’ annual leave. The business was closed over the Christmas break and Mr Mantineo was to return on 20 January 2020. Mr Spiekman’s parting words to Mr Mantineo before his leave were “I’ll see you next year, 2020”.

[23] At 6:45am on 20 January 2020, Mr Mantineo arrived at the Respondent’s factory. Mr Spiekman was standing out the front of the building and said words to the effect of “don’t bother putting your keys in, they’ve locked us out”.

[24] Mr Spiekman then asked Mr Mantineo to join him for a coffee, which he did. Mr Spiekman said words to the effect of “you no longer have a job” but provided no explanation as to what had happened. Mr Mantineo recalled expressing his shock and asking a number of times for the reason, and Mr Spiekman assuring him that he would be looked after. Mr Mantineo had not been given any prior indication that he would lose his job or that the business would cease to operate.

[25] Around one or two days later, Mr Mantineo received a phone call from Mr Spiekman’s daughter (a Ms Michelle Spiekman, who looked after the company’s administration). Ms Spiekman asked Mr Mantineo if he wanted to keep the company car that he had been using, which he declined and returned on or around 15 February 2020. Upon returning the car, to Mr Spiekman’s home address, Mr Spiekman came to door and the two had an exchange to the following effect:

Mr Mantineo: “How you going, Ted? Look, here’s the keys to the car which I’ve parked outside your home”

Mr Spiekman: (as Mr Mantineo started walking away)“Carl, we owe you money.”

Mr Mantineo: “In due course, I suppose.”

[26] Mr Mantineo did not receive written notice of termination or anything in writing other than a separation certificate which was sent by post (at Mr Mantineo’s request of Ms Spiekman) some weeks after the 20 January 2020 discussion outside the factory with Mr Spiekman. The reason for termination given on the separation certificate was “business closed”.

[27] Mr Mantineo did not receive any termination payment from the Respondent. He was not paid any of his accrued but unused annual leave (of which his most recent payslip showed there was a balance of over 510.33 hours prior to his 4 weeks’ leave in late 2019 6) or long service leave (the entitlement to which he was unsure of, having taken some during the course of his employment).

[28] Since his employment with the Respondent came to an end, Mr Mantineo has been searching for other work but not been able to obtain other employment. He has not earned any income since his employment came to an end.

[29] Mr Mantineo has no direct knowledge of whether the factory has commenced to operate again but did not accept this was possible in his absence.

[30] I found Mr Mantineo to be a credible witness. He answered my questions in a direct and responsive manner and gave consistent evidence throughout the proceedings. I accept the evidence given by Mr Mantineo as truthful and reliable.

When can the Commission order a remedy for unfair dismissal?

[31] Section 390 of the Fair Work Act 2009 (Cth) (Act) provides that the Commission may order a remedy to a person if:

(a) the Commission is satisfied that the person was protected from unfair dismissal at the time of being dismissed; and

(b) the person has been unfairly dismissed.

[32] Both limbs must be satisfied. I am therefore required to consider whether Mr Mantineo was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that Mr Mantineo was so protected, whether Mr Mantineo has been unfairly dismissed.

[33] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

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

(b) one or more of the following apply:

(i) a modern award covers the person;

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

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

[34] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.

PART A: INITIAL MATTERS TO BE CONSIDERED

Has Mr Mantineo been dismissed?

[35] A threshold issue to determine is whether Mr Mantineo has been dismissed from his employment with the Respondent.

[36] Section 386(1) of the Act provides that a person has been dismissed if:

(a) the person’s employment with their employer has been terminated on their employer’s initiative; or

(b) the person has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by their employer.

[37] Section 386(2) of the Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[38] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed, though it may be communicated orally. 7 By reason of the discussion between Mr Spiekman and Mr Mantineo, I find that Mr Mantineo’s employment with the Respondent was terminated at the initiative of the Respondent on 20 January 2020 with immediate effect.

[39] I am therefore satisfied that Mr Mantineo has been dismissed within the meaning of s 385 of the Act.

Other initial matters

[40] Section 396 of the Act sets out the matters the Commission is obliged to decide before considering the merits of the application, as follows:

(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; and

(d) whether the dismissal was a case of genuine redundancy.

[41] Section 394(2) of the Act requires an application to be made within 21 days after the dismissal took effect. I have found that Mr Mantineo was dismissed from his employment on and effective 20 January 2020. The application was made on 10 February 2020. I am therefore satisfied that the Application was made within the period required by subsection 394(2) of the Act.

[42] I have set out above when a person is protected from unfair dismissal. Mr Mantineo was employed on a full time, continuous basis for almost 30 years prior to his dismissal and was therefore employed for at least the minimum employment period. I find that, at the time of dismissal, Mr Mantineo was covered by an award, being the Timber Industry Award 2010 (Award). I am therefore satisfied that, at the time of dismissal, Mr Mantineo was a person protected from unfair dismissal.

[43] Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[44] The Applicant does not dispute that the Respondent is a small business employer within the meaning of s 23 of the Act. However, on the evidence, it is apparent that the dismissal was not by reason of the Applicant’s conduct or capacity but rather was for operational reasons.   I am therefore satisfied that the Small Business Fair Dismissal Code does not apply.  8

[45] Under s 389 of the Act, a person’s dismissal was a case of genuine redundancy if:

(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[46] Section 389(2) of the Act provides an exception to a genuine redundancy where redeployment is reasonable. It provides that a person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.

[47] According to publicly available company information, and in the absence of any record of voluntary liquidation being produced in accordance with the Commission’s order, the Respondent company continues to exist and is not in administration or liquidation. However there is some evidence that the Respondent no longer required Mr Mantineo’s job to be performed by anyone because the factory was locked at least as of 20 January 2020 (if not before) and, that same day, Mr Mantineo was told he no longer had a job. The separation certificate, being a declaration provided to a government authority and the only written record of the Respondent’s reason, stated that the reason for Mr Mantineo’s termination was business closure. Mr Mantineo accepted that the business had ceased operating and there is no evidence to suggest that the Respondent’s factory reopened or continued to operate after that time. For these reasons I accept that the Respondent no longer required Mr Mantineo’s job to be done by anyone within the meaning of s 389(1)(a).

[48] The evidence establishes that the Respondent has not complied with the obligations in the applicable Award about any redundancy of his position, including its obligations thereunder to:

•  notify Mr Mantineo of the changes including their nature, their expected effect on employees, and any other matters likely to affect employees; and

•  discuss with Mr Mantineo the likely effects of the changes and measures to avert or mitigate the adverse effects of the changes on employees; and

•  consider any matters raised by Mr Mantineo in relation to the changes.

[49] As to redeployment, there is no evidence of any positions which may have been available or suitable, at the time of Mr Mantineo’s dismissal or any evidence of any related entities.

[50] For the reasons given, I find that the Respondent’s dismissal of Mr Mantineo was not a case of genuine redundancy within the meaning of s 389 of the Act.

[51] Having considered each of the initial matters, I am required to consider the merits of the application.

PART B: WAS THE DISMISSAL HARSH, UNJUST OR UNREASONABLE?

[52] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[53] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 

[54] I set out my consideration of each below.

Was there a valid reason for the dismissal related Mr Mantineo’s capacity or conduct?

[55] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” 9 and should not be “capricious, fanciful, spiteful or prejudiced”.10 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.11

[56] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. 12 The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.13

[57] There is no suggestion in the evidence that the reason for Mr Mantineo’s dismissal related to his capacity or conduct, or of any performance issues or warnings during the lengthy course of the employment relationship. As I have found above, on the evidence before the Commission, the reason was the Respondent’s business closure. In all the circumstances, I find that there was no valid reason for Mr Mantineo’s dismissal related to his capacity or conduct.

Was Mr Mantineo notified of the valid reason?

[58] Because I am not satisfied that there was a valid reason for the dismissal related to capacity or conduct, this factor is not relevant to the present circumstances. 14 

Was Mr Mantineo given an opportunity to respond to any valid reason related to his capacity or conduct?

[59] Because I have not found that there was a valid reason for the dismissal related to capacity or conduct, this factor is not relevant to the present circumstances. 15 

Did the Respondent unreasonably refuse to allow Mr Mantineo to have a support person present to assist at discussions relating to his dismissal?

[60] Mr Mantineo did not request to have a support person present at the discussion of 20 January 2020 in which he was dismissed. There were no prior discussions related to his dismissal. It follows that the Respondent did not unreasonably refuse such a request by Mr Mantineo.

Was Mr Mantineo warned about unsatisfactory performance before the dismissal?

[61] For the reasons given above, I find that Mr Mantineo was not warned of any unsatisfactory performance before his dismissal.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?

[62] On the evidence, at the time of Mr Mantineo’s dismissal the Respondent was a small business with one Director (Mr Spiekman) and at most two employees (Mr Mantineo and Ms Spiekman). It was not contended that the Respondent had any dedicated human resource management specialists or expertise. However, those matters do not excuse the very poor procedures (or complete lack thereof) followed by the Respondent in effecting Mr Mantineo’s dismissal, in particular the failure to instigate any discussion with Mr Mantineo about the closure of the factory or termination of his employment prior to 20 January 2020, when he returned to work after a period of annual leave only to learn the premises were locked.

What other matters are relevant?

[63] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[64] The fact that Mr Mantineo was employed by the Respondent for 29 years at the time of his dismissal and his 63 years of age are relevant considerations, as is the fact that Mr Mantineo has not been able to find ongoing alternative employment after his dismissal by the Respondent.

Is the Commission satisfied that the dismissal of Mr Mantineo was harsh, unjust or unreasonable?

[65] I have made findings in relation to each matter specified in section 387 as relevant.

[66] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 16 

[67] Having considered each of the matters specified in s 387 of the Act, I am satisfied that the dismissal of Mr Mantineo was harsh, unjust and unreasonable because there were no valid reasons for his dismissal related to his capacity or conduct, there was no genuine redundancy of his position, he was not afforded procedural fairness in the process leading up to his dismissal and the dismissal has had harsh consequences for Mr Mantineo, namely a sustained period of unemployment.

Conclusion on unfair dismissal

[68] I am therefore satisfied that Mr Mantineo was unfairly dismissed within the meaning of s 385 of the Act.

PART C: REMEDY

[69] Having found that Mr Mantineo was protected from unfair dismissal, and that his dismissal was harsh, unjust and unreasonable, it is necessary to consider what, if any, remedy should be granted to him. Mr Mantineo accepted that the remedy of reinstatement is inappropriate, and I am satisfied that it would be inappropriate to reinstate Mr Mantineo in circumstances where the factory has closed down, I do not have any evidence as to any other entities or factories owned by the Respondent or of any associated entities, and having regard to the way in which Mr Mantineo was dismissed, I am satisfied that his relationship with Mr and Mrs Spiekman has deteriorated to a significant extent. As a result, I need to consider whether compensation is appropriate.

[70] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. 17 

[71] Having regard to all the circumstances of the case, including the fact that Mr Mantineo has suffered financial loss as a result of his unfair dismissal, I consider that an order for payment of compensation to him is appropriate.

[72] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Mr Mantineo. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.

[73] In undertaking this task, I shall use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases. 18 The approach to calculating compensation in accordance with these authorities is as follows:

Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

Step 5: Apply the legislative cap on compensation.

Remuneration Mr Mantineo would have received, or would have been likely to receive, if he had not been dismissed (s 392(2)(c))

[74] Like all calculations of damages or compensation, there is an element of speculation in determining an employee’s anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed. 

[75] On the unchallenged evidence including of Mr Mantineo’s personal financial circumstances, age and also of his lengthy career working for the Respondent leading its production operations, I accept that Mr Mantineo enjoyed working for the Respondent and intended to remain working for the Respondent for at least another few years. All other things being equal, there is nothing before the Commission to suggest that the Respondent would not have continued to employ Mr Mantineo for at least another few years.

[76] However all other things were not equal. It is significant that the Respondent’s business closed in early 2020. Whilst the exact date of a definite decision to close is not in evidence or known to Mr Mantineo, it is apparent that Mr Mantineo’s dismissal was triggered by the inability to access the factory to continue production and that this occurred either at or shortly before 20 January 2020. From at least 20 January 2020 (if not earlier), Mr Mantineo’s job was no longer required to be done and was not done by anyone.

[77] Had Mr Mantineo been terminated by way of redundancy in accordance with the applicable Award, he would have been entitled to consultation about the decision and notice of termination as provided for in the National Employment Standards in the Act. In the circumstances of a business with no more than two employees and a sudden factory closure, which immediately inhibited Mr Mantineo’s performance of his production role and left little that could be done by way of mitigation of the adverse affects, I consider that consultation in compliance with those obligations would have been short.  19 It could have properly taken place in the days prior to Mr Mantineo’s return from annual leave or indeed upon his return from annual leave on the day of 20 January 2020. However, Mr Mantineo would have received 5 weeks’ notice (including the additional year for a person over 45 years) and there is nothing to suggest that he could not reasonably have worked out his notice period, assisting the Respondent in effecting the business closure or other administrative duties. Mr Mantineo’s pay was $53,352 gross per annum excluding superannuation. That equates to $1,026 gross per week excluding superannuation. It follows that, even after the factory closure on 20 January 2020, Mr Mantineo would have received a further 5 weeks’ remuneration at $5,130 gross.

Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))

[78] At the time of the hearing (19 May 2020), Mr Mantineo had earned no alternative remuneration since his employment came to an end. I am satisfied that his searches for other work had been unsuccessful. Accordingly, there is no deduction to be applied on this ground.

Viability (s 392(2)(a))

[79] According to publicly available information, and in the absence of any document or record produced in compliance with the Commission’s order, the Respondent’s business continues to operate and has not been placed in administration. There is no evidence that any particular amount of compensation would affect the viability of the Respondent’s business. Indeed the Respondent declined the opportunity to provide such evidence and did not comply with the Commission’s order to produce such evidence.

[80] No adjustment will be made on this account.

Length of service (s 392(2)(b))

[81] Mr Mantineo’s lengthy period of service supports the making of an order for compensation. It is not a circumstance that warrants any diminution of the amount of compensation that might otherwise be determined as justified.

Mitigation efforts (s 392(2)(d))

[82] The evidence was that Mr Mantineo has searched for, but been unsuccessful in obtaining, alternative employment following his dismissal on 20 January 2020.

[83] In all the circumstances, I do not consider it appropriate to reduce the compensation on this account.

Any other relevant matter (s 392(2)(g))

[84] It is necessary to consider whether to discount the remaining amount for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which Mr Mantineo was subject might have brought about some change in earning capacity or earnings.  Positive considerations which might have resulted in advancement and increased earnings are also taken into account.

[85] The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision. 

[86] Because I am looking in this matter at an anticipated period of employment of 5 weeks, which has already passed (20 January 2020 to 24 February 2020), there is no uncertainty about Mr Mantineo’s earnings, capacity or any other matters during that period of time.

[87] In all the circumstances I have decided that it is not appropriate to discount or increase the figure of $5,130 gross plus superannuation for contingencies.

[88] For the reasons stated, I have found, on the balance of probabilities, that if Mr Mantineo had not been unfairly dismissed on 20 January 2020, he would have been given notice of redundancy upon his return from leave on 20 January 2020 and remained in employment with the Respondent until the conclusion of his notice period. In which case he would have been entitled to receive 12 weeks’ redundancy pay under s 119 of the Act. Having regard to the purpose of a compensation remedy to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied, 20  I consider it relevant in the circumstances of this case to include the 12 week redundancy payment to which Mr Mantineo would have been entitled to the compensation calculated thus far.21 The compensation amount then becomes $17,442 gross ($5,130 + (12 x $1,026 = $12,312). I also consider it appropriate to apply superannuation that would have been payable on these earnings at the then applicable rate pursuant to the Superannuation Guarantee (Administration) Act 1992 (Cth). This amount represents the gross sum Mr Mantineo would likely have received (less tax) had he not been dismissed unfairly. This calculation is intended to put Mr Mantineo in the position he would have been in but for his unfair dismissal on 20 January 2020.22

[89] Although I have made findings about certain entitlements to payment for the purposes of determining this unfair dismissal application, Mr Mantineo’s claims concerning underpayment are properly to be pursued in a court of competent jurisdiction and ultimately a court would need to reach its own conclusions on those matters. 23

[90] Save for the matters referred to in this decision, there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s 392(1) of the Act.

[91] I have considered the impact of taxation, but I prefer to determine compensation as a gross amount and leave taxation for determination.

Misconduct (s 392(3))

[92] Mr Mantineo did not commit any misconduct, so this has no relevance to the assessment of compensation.

Shock, distress or humiliation, or other analogous hurt (s 392(4))

[93] I note that in accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap (s 392(5)-(6))

[94] The amount of $17,442 gross plus applicable superannuation is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Mr Mantineo was entitled in his employment with the Respondent during the 26 weeks immediately before his dismissal. In those circumstances, I am satisfied that there is no basis to reduce the amount of $17,442 gross plus applicable superannuation by reason of s 392(5) of the Act.

Instalments (s 393)

[95] No application was made by the Respondent for any amount of compensation awarded to be paid in the form of instalments.

Conclusion on compensation

[96] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, there is no basis for me to reassess the assumptions made in reaching the amount of $17,442 gross plus applicable superannuation. 24 

[97] For the reasons I have given, I am satisfied that a remedy of compensation in the sum of $17,442 gross plus applicable superannuation (less taxation as required by law) in favour of Mr Mantineo is appropriate in the circumstances of this case. I will issue an order PR721434 to that effect.

DEPUTY PRESIDENT

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<PR719463>

Appearances:

P.Hull of Peter Hull & Associates for the Applicant

Hearing details:

2020
Melbourne (by telephone)
May 19.

 1   Stamped by Australia Post on 21 April 2020, and received by the Commission on 1 May 2020.

 2   In accordance with the Commission’s directions of 20 March 2020.

 3   The order was served on the Respondent at its nominated email addresses for Mr and Mr Spiekman and postal address.

 4   In his witness statement (Exhibit A1) and given orally, on affirmation, in response to my questions at the hearing.

 5   Per his most recent payslip of 28 November 2019.

 6   Ibid.

 7   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24] and Plaksa v Rail Corporation NSW [2007] AIRC 333 (Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne Print Q9605 (AIRC, Whelan C, 10 December 1998).

 8   Iannello v Motor Solutions Australia Pty Ltd[2010] FWA 3125; Groszek v Toyvision International Pty Ltd [2015] FWC 697.

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

 10   Ibid.

 11   Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir[2016] FWCFB 4185 at [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413

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

 13   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at [24].

 14   Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Gordon Square Child Care Centre [2013] FWCFB 762 at [46]-[49].

 15   Ibid.

 16   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]–[7].

 17   Kable v Bozelle [2015] FWCFB 3512 at [17].

 18 (1998) 88 IR 21; Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431.

 19   Giles v Advanced Lifestyle [2015] FWC 4129 at [23]-[25].

 20   Kable v Bozelle, Michael Keith T/A Matilda Greenbank[2015] FWCFB 3512 at [17].

 21   Alyssa Anderson v Beautiful Hair Burwood Pty Ltd T/A Beautiful Hair [2019] FWC 5808 at [75].

 22   Bowden v Ottrey Homes Cobram[2013] FWCFB 431at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35].

 23   Michael White v Superior Facilities Pty Ltd [2020] FWC 3035 at [41].

 24   Smith v Moore Paragon Australia Ltd (2004) 130 IR 446 at [32].