Mr Curtis Kaylock v Kajiks Showers & Robes Pty Ltd T/A SmartRobes

[2016] FWC 5496

[2016] FWC 5496

FAIR WORK COMMISSION

DECISION

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

Mr Curtis Kaylock
v
Kajiks Showers & Robes Pty Ltd T/A SmartRobes
(U2016/5937)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 15 AUGUST 2016

Application for relief from unfair dismissal – underpayment of wages etc - order for six month’s remuneration on basis of so-called Spriggs’ approach is over –compensation for loss of earnings – account must be had for prospective earnings as a contingency to avoid effective “ double dipping” – court authority on contingencies

[1] Mr Curtis Jon Kaylock was employed by from 22 September 2014 until 16 March 2016 as an installer with Kajiks Showers and Robes Pty Ltd (“the employer”). Mr Kaylock alleges that he was constructively dismissed by his employer following the course of conduct by his employer in which his employer persistently underpaid his entitlements, refused to participate in a Fair Work Ombudsman process, and threatened to dismiss him for pursuing his enquiries to the Fair Work Ombudsman. Mr Kaylock subsequently filed an application for unfair dismissal under section 394 of the Fair Work Act 2009 (“the Act”).

[2] The file, as I had received it, showed little progress in filing any materials. It appears the Directions process had been adjourned on verbal advice from the employer, that the matter was close to settlement. The Applicant dispelled this presumption when he contacted the Unfair Dismissals Team enquiring about the (lack of) progress in his application.

[3] Upon the allocation of the file, the matter was set down for telephone Directions.

[4] Mr Shoaib Mohammad, the employer, did not attend the listed Directions Conference to discuss the programming of this matter. He made no inquiries about the process after the Directions listing was dispatched nor did he advise he would be unable to appear via telephone.

[5] The applicant, Mr Kaylock, appeared at the Directions conference.

[6] As the matter had been on foot for some time, but without any progress, in the filing of their materials, let alone the successful arrangement of a conciliation conference, I brought the matter on for arbitration. The Notice of Listing issued on 1 August 2016 indicated that evidence would be taken orally on the day of the hearing and that parties were to file any documents upon which they sought to rely by Thursday, 4 August 2016.

[7] The employer, Mr Mohammad, did not appear at the Hearing and was not contactable at the time by telephone. Five telephone calls were made to his place of work and no reply was received to any messages.

[8] The hearing proceeded in Mr Mohammad’s absence as a consequence.

[9] That said, some 3 ½ hours after the hearing commenced, Mr Mohammad made contact with my Associate, questioning the status of the application and the hearing. In response to this telephone message I directed an email to Mr Mohammad advising him of the status of the proceedings, which by that time had concluded.

[10] Notwithstanding this, given the circumstances, I convened a conference the following morning at 10.00 am. Both Mr Kaylock and Mr Mohammed expressly agreed by email to attend the conference by telephone.

[11] Irrespective of this agreement, however, Mr Mohammed did not attend the conference call and was unable to be contacted. Some four hours after the time the conference was to commence, Mr Mohammed left a voice message with my Associate indicating that the reason for his non-attendance was that he had dropped his mobile phone and it had been inoperable for the interim period. No email or telephone call from another device or landline had been received from Mr Mohammed at an earlier time. Mr Kaylock had attended the conference, as he had agreed.

[12] I elected not to entertain Mr Mohammad’s entreaties any further and set about determining the application following the concluded hearing.

[13] I do note, further, that following the initial Directions Conference referred to above, Mr Kaylock indicated that Mr Mohammad, without any explanation or payslip, had placed some $500.00 in his bank account.

[14] Section 386 of the Act states:

Meaning of dismissed

(1) A person has been dismissed if:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

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

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

Findings on Jurisdiction – whether dismissal at employer’s initiative

[15] I first of all consider that Mr Kaylock was dismissed for purposes of s. 386(1)(a) of the Act for reason, consistent with the requirements of section 386 (1)(b) of the Act, that he was forced to do so because of the course of conduct engaged in by his employer, Mr Mohammad.

[16] The conduct in which Mr Mohammad engaged has been summarised above. Mr Kaylock gave evidence that his employer persistently underpaid his wages and did not pay him over time or any relevant loadings. Mr Kaylock said his wages were often paid late, payslips were not provided, and that Mr Mohammad would not meaningfully respond to his requests to revise his processes and to make good the outstanding payments due to him.

[17] Mr Kaylock indicated in his evidence, that such was the unreliability of his employer’s payments to him, he had incurred approximately $900.00 in bank fee over drawn charges.

[18] As a consequence of the on-going difficulties in this regard, Mr Kaylock contacted the Fair Work Ombudsman, but Mr Mohammad refused to take part in the subsequent conference. Mr Kaylock complained, that following the intervention of the Fair Work Ombudsman, Mr Kaylock’s supervisor, Mr Mohammad’s father, threatened to dismiss him for talking on the telephone and refused to allow him to take his lunch break for reasons that he had contacted the Ombudsman.

[19] Mr Kaylock claimed that he explained to Mr Mohammad’s father that it was not lawful to dismiss an employee for involving the Fair Work Ombudsman in an underpayment claim. Mr Mohammad’s father was said by Mr Kaylock to have scoffed in reply and stated that he would merely say that he had no work for him anymore if contacted by anyone.

[20] Mr Kaylock took the view, as I apprehend his evidence, that Mr Mohammad would not reasonably engage in any process of restitution for unpaid wages and that the employer’s conduct generally was conspicuously disrespectful of his rights. Mr Kaylock reached the view that his employment was now untenable.

[21] It appears to me in the circumstances, that Mr Kaylock had no option reasonably available to him, but to resign his employment. His employer gave no commitment or entered into any undertaking or procedure to rectify his outstanding entitlements, and the employer’s representative threatened his ongoing employment and\or was willing to damage Mr Kaylock in his employment, for reasons of agitating his concerns about underpayment. That is not to say Mr Kaylock was forced to resign his employment owing to the conduct his employer evidenced.

[22] Because Mr Kaylock had no reasonable alternative but to resign from his employment, Mr Kaylock must be taken to have been dismissed at the initiative of the employer for purposes of section 386 (1) (a) of the act.

[23] Having established that Mr Kaylock has met the jurisdictional requirements for making an application, insofar as he was dismissed at the initiative of the employer, I now turn to consider whether or not his dismissal was harsh, unjust or unreasonable.

Was the termination of employment harsh, unjust or unreasonable?

[24] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission must take into account the following criteria, all of which arise under s.387 of the Act.

[25] Section 387 of the Act provides 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

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)

[26] I have found above that Mr Kaylock was constructively dismissed.

[27] His employer had no sound or defensible basis to embark on the course of conduct that inexorably led to Mr Kaylock’s resignation.

[28] There was no valid reason for Mr Kaylock’s (constructive) dismissal.

Whether Mr Kaylock was notified of that reason

[29] The circumstances of the dismissal was such that Mr Roberts could not have been notified at any stage of any (valid) reason for his dismissal as no such reason existed.

Whether Mr Kaylock was given an opportunity to respond to any reason related to the capacity or conduct of the person

[30] As there was no valid reason for the dismissal, Mr Kaylock cannot have been given an opportunity to respond to any such reason.

Any unreasonable refusal by the employer to allow Mr Kaylock to have a support person present to assist at any discussions relating to dismissal

[31] Given the circumstances of the dismissal, there was no context in which any discussions relating to dismissal occurred and therefore this subsection is not of relevant concern.

If the dismissal related to unsatisfactory performance—whether Mr Kaylock had been warned about that unsatisfactory performance before the dismissal

[32] This subsection is not relevant, as Mr Kaylock’s dismissal did not arise in the context of any performance issues.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[33] There was no evidence or submission that the size of the enterprise had any impact on the procedures followed. But from Mr Kaylock’s claims, it is apparent the employer’s enterprise was very small and this may reasonably have contributed to the poor information levels about the implications of its conduct.

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

[34] There was no evidence or submission about whether the employer had human resources management specialists or expertise. But reasonably, the employer’s enterprise was without such skills or expertise and this inferentially would have impacted on its conduct in relation to managing the circumstances leading to Mr Kaylock’s constructive dismissal.

Any other matters that the Commission considers relevant

[35] There are no other relevant matters.

Conclusion

[36] I find that the dismissal of Mr Kaylock’s dismissal was harsh, unjust or unreasonable.

Remedy

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

Division 4—Remedies for unfair dismissal

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.

Reinstatement

[38] Section 391 of the Act provides as follows:

391 Remedy —reinstatement etc.

Reinstatement

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

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

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

(1A) If:

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

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

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

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

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

Order to maintain continuity

(2) If 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.

[39] Mr Kaylock does not seek re-employment or reinstatement (given the context of a constructive) and to act contrary to his wishes in this respect would not yield a productive outcome consequentially.

[40] Having so found, I now need to determine - in accordance with s.390(3)(b) of the Act - whether an order for payment of compensation is appropriate in all the circumstances of the case.

Compensation

[41] Section 392 of the Act provides as follows:

392 Remedy — compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), 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

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

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

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

(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

(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

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

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

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.

[43] Section 390(3)(b) of the Act serves as a prerequisite to the exercise of the conditioned discretion to determine the quantum of compensation that an employer must pay to the person in lieu of reinstatement. The prerequisite to the exercise of that discretion is that the Commission reaches a state of satisfaction that an order for compensation is appropriate, in all the circumstances of the case.

[44] The Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge[2013] FWCFB 431(“Ottrey”) held that this state of satisfaction could only be arrived at by considering all the circumstances of the case, and this meant that the range of matters set out a s.392(3) of the Act needed to be considered (though it will be noted that the Full Bench included ultimately in its decision additional consideration of s.393 of the Act):

“It is further apparent that a FWC decision to order the payment of compensation to a person is also a discretionary decision, but is only exercisable if, amongst other things, the FWC is satisfied reinstatement of the person is inappropriate and the FWC considers a compensation order is appropriate in all the circumstances of the case.

[…]

[40] As to whether an order for the payment of compensation by Ottrey to Ms Bowden is appropriate in all the circumstances of the case, we note that the phrase “all the circumstances of the case” in s.390(3)(b) of the FW Act is also contained in s.392(2). However, in s.392(2) the phrase is followed by a reference to the matters in ss.392(2)(a) to (g) and s.392(2)(g) concerns “any other matter that the FWC considers relevant.” In this case, we think the matters in ss.392(2)(a) to (g) embrace all the circumstances of the case relevant to our consideration of whether a compensation order is appropriate. In Henderson v Department of Defence it was recognised that the same matters may serve different purposes in s.170CH of the WR Act, as it was prior to the Work Choices amendments. A Full Bench of the AIRC said:

‘[20] It is correct that, if the Commission decides to order an amount in lieu of reinstatement, regard would have to be had to the same matters for the purpose of determining the amount to be ordered. But that involves having regard to these matters for a different purpose. In s.170CH(2) the purpose of the inquiry is to ascertain which remedy or remedies, if any, are appropriate. In s.170CH(7) the purpose of the inquiry is to ascertain the amount to be awarded in lieu of reinstatement. If it were otherwise s.170CH(7) would be redundant.’

[41] We turn then to the matters for the purpose of considering whether an order for the payment of compensation by Ottrey to Ms Bowden is appropriate in all the circumstances of the case.

[42] There is no sound basis to conclude an order for the payment of compensation would affect the viability of Ottrey’s enterprise. The effect of such an order on Ottrey’s viability does not militate against such an order. Ms Bowden’s length of service with Ottrey was some four years. This is a period supporting such an order. The remuneration Ms Bowden received, or would have been likely to receive, if she had not been dismissed and her mitigation efforts at Yooralla and in her small business support an order for the payment of compensation. We concur with the Commissioner that Ms Bowden would have worked for Ottrey for at least another six months but for her dismissal. The amount of remuneration earned by her from employment or other work and the income reasonably likely to be so earned by her are not such as to militate against such an order. The matter of contingencies does not militate against such an order in this case, particularly given the period she would have worked for Ottrey but for her dismissal has long passed. However, the misconduct of Ms Bowden that contributed to Ottrey’s decision to dismiss her, as set out in the Commissioner’s first decision, does go against an order for the payment of compensation. There are no other matters that we consider are relevant to the circumstances of the case for the purpose of considering whether a compensation order is appropriate.

[43] In our view, the matters supporting an order for the payment of compensation outweigh that going against such an order, leading us to consider that an order for the payment of compensation by Ottrey to Ms Bowden is appropriate in all the circumstances of the case.”

Consideration

[45] I proceed below to consider both the discretionary consideration (whether to make an Order) and the amount to be ordered in compensation. It is apparent, on my consideration, that an Order is warranted in the circumstances and compensation must be paid. My reasons for reaching these conclusions follow.

The effect of the order on the viability of the employer’s enterprise

[46] I have nothing before me as to the commercial status or viability of the employer’s business and must assume that the employer has a sufficient cash flow or other reserves through which he may meet any order that I may make in compensation.

[47] The effect of an Order for compensation in this respect does not militate against such an order.

The length of the person’s service with the employer

[48] Mr Kaylock’s length of service with the employer was for a period of some 19 months. This is not a period of time that strongly encourages the making of an order as it is not a lengthy period of employment, and it would not follow that Mr Kaylock was firmly entrenched in his position at the time of his dismissal.

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

Mr Kaylock’s wife, an accountant and Book Keeper, gave evidence that her husband’s remuneration in the preceding 12 month period had amounted to $70,436.00 (noting that some payments were still outstanding and had been the subject of the complaint made to the Fair Work Ombudsman as cited above).

[49] Had Mr Kaylock continued to perform work for the employer he would have done so foreseeably for a period for at least 12 months, as there was no material performance or conduct concerns in issue, and his remuneration would have been as cited immediately above - $70,436.00.

[50] This is not an amount or a period of time that militates against making an order for compensation.

The amount of remuneration earned by Mr Kaylock from employment or other work since the dismissal

[51] Mr Kaylock obtained new employment some three working days following his dismissal. His hourly rate of pay was $1.00 an hour higher than his previous position, but it appears he does not have access to the overtime or regular weekend work.

[52] On the evidence before me, Mr Kaylock’s remuneration for the foreseeable 12 month period from the date of his dismissal amounted to $55,328.00.

[53] The remuneration Mr Kaylock would have received, or would have been likely to receive, if he had not been dismissed, does not militate against the making of an Order as it is not an amount equal to or a higher amount than he would have earned had he remained in his employment with his employer.

[54] Given that six months have passed since Mr Kaylock’s constructive dismissal and the hearing of the matter, I understand that the amount Mr Kaylock has earned during that period amounts to $27,664.00.

[55] The amount of income earned by Mr Kaylock since his dismissal does militate against making an order for compensation.

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

[56] This is not relevant in the circumstances before me.

Any other matter that the FWC considers relevant

[57] There are no matters that I consider relevant.

Misconduct reduces amount

[58] I do not consider that there is any evidence that supports a claim that Mr Kaylock’s conduct led to some measure to his dismissal. To the contrary, it was the conduct of the employer exclusively that led to the dismissal.

Monetary orders may be in instalments

[59] Mr Mohammad may apply for leave to discharge the amount he is ordered to pay by reasonably framed instalments.

Conclusion on remedy

[60] I have considered the circumstances and have concluded that I should make an order for compensation, but subject to the terms set out in the following.

Having deducted the amount earned by Mr Kaylock from the projected earnings over the 12 month period of anticipated employment, and taking into account the statutory ceiling of six months, I reached the view that Mr Kaylock might ordinarily be compensated to the amount of six months of his usual wages which he confirms amounts to $35,218.00. This amount constitutes six month’s of Mr Kaylock’s prior earnings.

[61] However, this is not the end of the matter.

[62] In this particular case, there is a high measure of surety that Mr Kaylock’s employment is on a continuing basis, and that he will therefore maintain his current income into the foreseeable future.

[63] If I was to award Mr Kaylock compensation of an amount of six months’ pay, Mr Kaylock would be double dipping, in so far as the payment would over compensate Mr Kaylock, for his actual losses into the future.

[64] In such a situation, as I have discussed in my decision in Mr Michael Efford v BTE Technology[2016] FWC 657(“BTE”), it is necessary - in order to avoid over compensation - to take into account actual and, where relevant, prospective earnings, over the period of anticipated employment as a step in consideration of the contingencies relevantly discernible in the case at hand. In BTE I put the matter this way:

“In Bresatz v Przibilla (1962) 108 CLR 541, Windeyer J commented as follows in relation to contingencies of both a negative kind (which reduce the likelihood of earnings) and a positive kind (which increase the likelihood of earnings) to the award of compensation for damages:

‘[3] Turning then to the first head commonly called loss of future earnings - a common method of estimating the loss of prospective earnings is to take the annual earnings at the date of the accident and multiply this by the number of prospective working years lost. Then it is said "the resulting amount must then be scaled down by reason of two considerations, first that a lump sum is being given instead of the various sums over the years, and second that contingencies might have arisen to cut off the earnings before the period of disability would otherwise have come to its end": Mayne & McGregor, Damages (1961) p. 767. The first of the two considerations mentioned does, of course, in every case demand that the product of the initial multiplication must be discounted at some assumed rate of interest to ascertain the present value of the notional future earnings. Nothing here turns upon the individual. This "scaling down" is a mere process of arithmetic applicable to all cases; and there are tables from which the result is readily ascertainable. But the second consideration is altogether different. It is a mistake to suppose that it necessarily involves a "scaling down". What it involves depends, not on arithmetic, but on considering what the future might have held for the particular individual concerned. He might have fallen sick from time to time, been away from work and unpaid. He might have become unemployed and unable to get work. He might have been injured in circumstances in which he would receive no compensation from any source. He might have met an untimely death. Allowance must be made for these "contingencies", or the "vicissitudes of life" as they are glibly called. But this ought not to be done by ignoring the individual case and making some arbitrary subtraction. We were told that in South Australia it is a common practice to subtract twenty-five per cent "for contingencies". Indeed counsel for the appellant, in the calculations he made in support of his claim for higher damages, conceded that this should be done. But he did not explain why. I know of no reason for assuming that everyone who is injured and rendered for a period unable to work would probably in any event have been for a quarter of that period out of work, or away from work and unpaid. No statistics were presented to justify this assumption. Moreover, the generalization, that there must be a "scaling down" for contingencies, seems mistaken. All "contingencies" are not adverse: all "vicissitudes" are not harmful. A particular plaintiff might have had prospects or chances of advancement and increasingly remunerative employment. Why count the possible buffets and ignore the rewards of fortune? Each case depends upon its own facts. In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad. With these considerations in mind I turn to the element of loss of future earnings in this case and to what the learned trial judge said on this aspect.’

The judgment of Windeyer J is commented upon favourably by the High Court in its judgment in Wynn v NSW Insurance Ministerial Council (1995) 133 ALR 154, which itself is quoted favourably in Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000 Print S5109), which noted that included in the scope for contingencies were:

‘positive considerations which might have resulted in advancement and increased earnings are also taken into account’

In Tabro Meat Pty Ltd v Heffernan[2011] FWAFB 1080, a Full Bench of (what was then) Fair Work Australia, took into account the possibility of prospective earnings (where the Applicant concerned had obtained a temporary employment position only following dismissal) in reducing the amount to be awarded by 25% as a result of uncertainty as to the extent of on-going unemployment.

Demonstrably, the likelihood of prospective earnings is a matter that is taken into account for purposes of determining the amount the Commission may order that an employer pay a person. Equally, the extent of such prospective earnings must form a criterion to be taken into account when determining whether it is appropriate to make an order for compensation itself.”

[65] In this case therefore, given Mr Kaylock’s earnings, and the contingency that he will maintain his current earnings into the foreseeable future, he should only be compensated for the differential in the earnings between his two positions for the applicable six month period. If contingencies in relation to prospective earnings did not apply, Mr Kaylock would be over compensated for his losses.

[66] I calculate this differential to be the $7,554.00 (gross) and subject to ordinary taxation.

[67] An Order to this effect requiring payment within 14 business days of the publication of the Order will issue along with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Kaylock for himself.

Respondent did not attend.

Hearing details:

By Telephone, 8 August 2016.

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