Mr Christopher Sheppard v Rivershow Pty Ltd

[2013] FWC 8661

[2013] FWC 8661

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mr Christopher Sheppard
v
Rivershow Pty Ltd
(U2013/816)

COMMISSIONER CLOGHAN PERTH, 5 NOVEMBER 2013

Unfair dismissal - compensation.

[1] On 14 October 2013, the Fair Work Commission (Commission) issued a Decision and Reasons for Decision [2013] FWCA 7824 in relation to Mr Sheppard’s (Mr Sheppard) application to the Commission seeking a remedy for alleged unfair dismissal from his employment with Rivershow Pty Ltd (Employer). Having considered all the material provided to the Commission and the evidence of Mr Sheppard, I determined that he was unfairly dismissed from his employment. The Employer did not attend the hearing or advise the Commission why they were unable to attend.

[2] At paragraph [58] of [2013] FWCA 7824, I advised the parties that I would provide them with the opportunity to make submissions as to the appropriate compensation in lieu of Mr Sheppard’s reinstatement. In paragraph [59], I set out Mr Sheppard’s evidence relating to his hours of work and rate of pay.

[3] Procedural directions to the parties were issued on 17 October 2013 setting out the relevant statutory provisions relating to compensation in lieu of reinstatement. The parties had until 1 November 2013 to make submissions.

[4] I received submissions from both Mr Sheppard and Mr Strahan on behalf of the Employer.

[5] The criteria for deciding the amount of compensation is contained in subclause 392(2) of the Fair Work Act 2009 (FW Act) and is as follows.

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

[6] The Employer submits that Rivershow Pty Ltd is a “shell” company and asked the question “who pays the determined amount?”.

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

[7] Mr Sheppard was employed from 24 July 2012 to 6 March 2013.

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

[8] Prior to being dismissed, Mr Sheppard had entered into an arrangement that he would work six (6) hours per day for six (6) days of the week at $22.00 per hour. There is no evidence that Mr Sheppard would not have continued working with this arrangement had it not been for his dismissal.

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

[9] Mr Sheppard gave evidence that he commenced employment with another employer on 20 May 2013. Between being dismissed on 6 March 2013 and 20 May 2013, Mr Sheppard joined two labour hire organisations, obtained a fork lift licence, sought employment through “word of mouth”, updated his resume and looked on SEEK 1. I am satisfied that Mr Sheppard engaged in employment activities to mitigate his loss arising from his dismissal.

(e) the amount of remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation

[10] Mr Sheppard submitted that he has not worked continuously since 20 May 2013. The employer with whom he commenced on 20 May 2013 provided a greater hourly rate of pay than that which he received from the Employer. Further, his employment has again changed; this employment is at an hourly rate less than he was paid with the 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

[11] This factor is not relevant to the extent that it can be ascertained.

(g) any other matter that the FWC considers relevant

[12] I have not taken into account any other matters other than those referred to below.

APPROPRIATE AMOUNT OF COMPENSATION

[13] I am satisfied from the evidence and submissions that Mr Sheppard did not engage in misconduct leading to his dismissal and it is not a matter relevant to my consideration of the appropriate amount of compensation in accordance with subsection 392(3) of the FW Act.

[14] In accordance with subsection 392(4) of the FW Act, I have not included a component in the compensation amount for shock, distress or humiliation in relation to the manner of Mr Sheppard’s dismissal.

[15] The amount of compensation must not, and does not, exceed the lesser of the amount of remuneration Mr Sheppard received during the 26 weeks immediately before Mr Sheppard’s dismissal or the compensation cap of $64 650, in accordance with subsections 392(5) and (6) of the FW Act.

[16] I find that Mr Sheppard would have continued in his employment to an unspecified date into the future. Mr Sheppard’s hours of employment had recently been increased it appears to coincide with the increased trading hours of the Employer.

[17] In view of the relatively short period of Mr Sheppard’s employment, I consider it appropriate to focus, in terms of compensation, on the period between his dismissal and recommencing employment on 20 May 2013. This is a period of nine (9) weeks and six (6) days. During this period Mr Sheppard would have worked 60 days at six (6) hours per day or 360 core hours of employment.

[18] Mr Sheppard’s hourly rate of pay was $22 per hour. Three-hundred-and-sixty (360) hours at $22 per hour is $7 920.

[19] Having arrived at a base line figure of $7 920, the objects of Part 3-2 - Unfair Dismissal of the FW Act, is that the parties be afforded a “fair go all round” when working out a remedy for unfair dismissal.

[20] In giving expression to a “fair go all round”, I consider it appropriate to take into account that Mr Sheppard’s increased hours were only for the last three (3) weeks of his employment. Consequently, for approximately 90% of Mr Sheppard’s employment, his core working hours were three (3) hours per day for five (5) days of the week, or 15 hours per week, albeit at the higher hourly rate of pay of $25 per hour.

[21] If Mr Sheppard had been dismissed prior to a change of his core hours, applying the above formula, compensation would have been $3 750 or 150 hours at $25 per hour. However, the plain facts are that Mr Sheppard was dismissed after the change of core hours and that there is no evidence to indicate that these core hours would have changed.

[22] In accordance with paragraph 392(2)(g) of the FW Act, I consider these circumstances relevant and have taken them into account in conjunction with paragraph 392(2)(b) of the FW Act relating to the length of Mr Sheppard’s employment.

[23] Mr Sheppard was employed for a period of less than eight (8) months and it is a factor which I must take into account in determining the amount of compensation pursuant to paragraph 392(2)(b) of the FW Act.

[24] Having considered the recent change in Mr Sheppard’s core hours and his relative short period of employment, I am satisfied that in giving expression to “fair go all round” and the provisions of s.392(2)(b) and (g), it is appropriate to reduce the base line figure of $7 920 by 25%. The amount of $792, which has already been paid, will be taken from this amount.

[25] In conclusion, for the reasons set out above, an order for compensation will be made for $5 148. The amount is to attract whatever superannuation and/or taxation is required at law.

[26] The gross amount of $5 148 is to be paid within fourteen (14) days of this Decision and Reasons for Decision. An Order to reflect this Decision will be issued conjointly with this Decision and Reasons for Decision.

COMMISSIONER

Final written submissions:

Applicant: 20 October 2013.

Respondent: 17 October 2013.

 1   Paragraph [30] of [2013] FWCA 7824

Printed by authority of the Commonwealth Government Printer

<Price code A, PR544116>