Mr David Payne v Lower North Shore Community Transport Inc T/A Lower North Shore Community Transport

[2015] FWC 8943

[2015] FWC 8943

FAIR WORK COMMISSION

DECISION

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

Mr David Payne
v
Lower North Shore Community Transport Inc T/A Lower North Shore Community Transport
(U2015/8524)

COMMISSIONER JOHNS SYDNEY, 23 DECEMBER 2015

Application for Relief of Unfair Dismissal – remedy - correction of error in relation to a decision.

Introduction

[1] On 30 November 2015 the Fair Work Commission (Commission), as presently constituted, issued a decision (Decision) in which it found that the dismissal of the applicant was harsh, unjust or unreasonable. Accordingly the Commission, as presently constituted, found that the applicant’s dismissal was unfair 1.

[2] In relation to the question of remedy the Commission, as presently constituted, decided that reinstatement was not inappropriate. The Commission has subsequently been advised that the respondent reinstated the applicant from 14 December 2015.

[3] The Commission, as presently constituted, further ordered that:

a) the applicant’s continuity of employment between 26 May 2015 and the date that his is reinstated be maintained; and
b) there be no order for the restoration of lost pay. 2

[4] However, in relation to the order concerning lost pay the Commission made the following observations:

Restoration of lost pay

[75] Section 390(3) of the Act provides the Commission with a discretion to determine if it is appropriate to make an order causing the respondent to pay the applicant an amount for the remuneration lost, or likely to be lost, by the applicant because of the dismissal.

[76] Pursuant to s.391(4) I must take into account any remuneration earned from employment or other work by the applicant since the dismissal and the making of the order for reinstatement and any remuneration to be earned from employment or other work by the applicant between the time of the making of the order and the actual reinstatement.

[77] Noting that the applicant has not incurred any economic loss to date (by virtue of the payment made to him on termination) I consider it inappropriate to make an order restoring remuneration lost, or reasonably likely to be lost, by the applicant because of the dismissal. In fact it seems likely that if the applicant is re-employed before 21 days of the date of this decision, he may have to make a re-payment to the respondent. I expect that the parties can resolve this matter between themselves, but, if not, they are at liberty to make application to me about the same.

[5] On 8 December 2015 the applicant wrote to the Commission and indicated that, by reason of the passage of time, since the termination of his employment, and the date of reinstatement, there was in fact a loss of pay. Noting that paragraph [77] of the Decision granted the parties liberty to make an application about the issue of loss of pay, the Commission, as presently constituted, treated the correspondence from the applicant dated 8 December 2015 as him availing himself of that liberty to make an application in respect of the issue.

[6] The parties were invited to make submissions about the issue of a loss of pay.

[7] The applicant submitted that:

a) on the termination of employment on 26 May 2015 he received 25 weeks’ pay (20 weeks redundancy and 5 weeks in lieu of notice);
b) the 25 weeks’ pay compensated him through until 17 November 2015;
c) there are 18 work days between 17 November 2015 and 14 December 2015 in respect of which he has lost pay;
d) 18 days at an hourly rate of $35.31 per hour is an amount of $4449.06;
e) to be deducted from that lost pay is an amount of $246;
f) an order should be made that the respondent pay to the applicant lost pay in the amount of $4203.06.

[8] In its submission the respondent did not dispute the calculation provided by the applicant, but indicated that it had not made a payment because it was not the subject of an order of the Commission.

Conclusion

[9] Noting the error made by the Commission in its Decision in relation to the calculation of the pay lost by the applicant, the Commission, as presently constituted orders that, pursuant to s.602 of the FW Act, the Decision and orders be corrected such that the respondent be ordered to pay $4203.06 by way of lost pay to the applicant. The payment is to be made within 21 days of the date of this supplementary decision.

COMMISSIONER

 1   [2015] FWC 8145.

 2   [2015] FWC 8145, para [79]

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