Mr Georg Thomas v InfoTrak Pty Ltd T/A InfoTrak

[2013] FWC 1134

[2013] FWC 1134

FAIR WORK COMMISSION

DECISION

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

Mr Georg Thomas
v
InfoTrak Pty Ltd T/A InfoTrak
(U2012/13362)

COMMISSIONER ROE MELBOURNE, 21 FEBRUARY 2013

Termination of employment - small business-genuine redundancy.

[1] The matter arises from an application filed on 19 September 2012 under s 394 of the Fair Work Act 2009 (the Act) by Mr Georg Thomas (the Applicant) for relief in respect to the termination of his employment from InfoTrak Pty Ltd (the Respondent or InfoTrak).

[2] Following an unsuccessful conciliation conference the matter proceeded to arbitration. The parties elected to proceed to a conference and a hearing if required on 12 February 2013. I provided the parties with the opportunity to test the matters which were provided in submissions and in documentary evidence at various stages during the proceeding. However, as it turned out I did not consider it necessary, and the parties agreed, for any of the points of evidence to be the subject of cross examination. The Applicant represented himself and provided a written submission, a witness statement and some documentary evidence. The Respondent was represented by a director of InfoTrak Mr Stelling and by the Managing Director Mr Bruyns.

[3] It is not in contention and I am satisfied that:

● The Applicant was employed as a full time operations manager from 5 September 2011 until 18 September 2012. The annual salary of the Applicant was $119,266.
● The Applicant was dismissed at the initiative of the employer on 18 September 2012 and effective from that date. The Applicant was paid two weeks in lieu of notice. The termination letter dated 18 September 2012 stated that the termination was for reasons of redundancy and also that the decision was “not a reflection on your performance.”
● The Respondent alleged that the Applicant had been paid for 8 days annual leave to which he was not entitled and deducted this from the notice pay.
● The Respondent is a national system employer and the Applicant is, save for the issue of genuine redundancy, protected from unfair dismissal in that he was employed for a continuous period of more than 12 months and was dismissed at the initiative of the employer.
● The Respondent alleges that it was a small business in that at the time of the termination it, together with any associated entities, employed 14 employees including the Applicant.
● The Respondent does not rely on the small business code as the Respondent argues that the termination was a genuine redundancy.
● There is no applicable collective agreement.

[4] The Respondent develops and supports web based software in equipment condition monitoring. The business is in the Information Technology industry. The Respondent agreed that the Applicant was hired because of the combination of his management and information technology qualifications and experience. The Respondent and the Applicant agreed that the information technology qualifications and experience was necessary for him to be able to properly manage and lead those engaged in information technology projects. It was essential for him to understand the nature of issues affecting those projects and client needs The Applicant holds a Masters in Technology Management which is a two year full time course. He completed this qualification in February 2012. He also holds a Graduate Certificate in Technology Management which is a two year full time course and a Certificate IV in Network Management and various vendor qualifications. The Applicant is a member of the Australian Computer Society. I am satisfied, and it is not contested, that some of the duties of the Applicant require him to utilise these qualifications and experience.

Small business

[5] The Respondent alleges that it was a small business in that at the time of the termination it, together with any associated entities, employed 14 employees including the Applicant. The Respondent correctly includes Mr Bruyns in the list as he is an employee. The Respondent produced a spread sheet of all employees engaged together with the time period during which they were engaged over the twelve months to October 2012. 1

[6] The Applicant did not contest the accuracy of the spread sheet except that the Applicant argued that Mr Liu should be included as he was engaged from August 2012 until October 2012. The Respondent argues that Mr Liu was a TAFE student undertaking a practical placement consistent with the Education and Training Reform Act 2006 (Victoria). That placement being an unpaid period of practical placement as part of the course for up to 240 hours. The Respondent produced a copy of the placement agreement between the TAFE, Mr Liu and the Respondent. I am satisfied that the placement of Mr Liu is a vocational placement within the definition of vocational placement in Section 12 of the Act. Section 13 of the Act provides:

“A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.”

[7] I am satisfied that Mr Liu is not counted as an employee for the purposes of determining whether or not the Respondent is a small business.

[8] The Applicant argues that there are employees in an associated entity EccoClassic Group Pty Ltd (EccoClassic). The basis of the contention that EccoClassic is an associated entity is that Mr Stelling is a Director of both EccoClassic and InfoTrak and that he holds approximately 20% of the shares in both companies. Mr Stelling is the Managing Director of EccoClassic. A large hardware company owns 40% of the shares in EccoClassic but does not hold an interest in InfoTrak. The other directors of InfoTrak are not also directors of EccoClassic. The evidence that EccoClassic has a significant influence over InfoTrak and vice versa was not clear. I therefore consider that it would be difficult for me to make a finding that EccoClassic is an associated entity.

[9] However it is not essential to decide this matter for two reasons. Firstly, it is not in contention that EccoClassic does not employ anyone requiring information technology skills and therefore there is no option for redeployment from InfoTrak to EccoWise. Secondly, the termination was not a summary dismissal; the Respondent did not complete any check list; and the Respondent did not provide any warning. Therefore, the small business dismissal code has not been complied with in the event that I find that the termination was not a genuine redundancy.

The threshold issue - genuine redundancy.

[10] The threshold issue is whether or not the dismissal was a genuine redundancy. Section 385(d) of the Act provides that if I am satisfied that the dismissal is a genuine redundancy then it cannot be an unfair dismissal. Genuine redundancy is defined as follows by the Act:

“389 Meaning of genuine redundancy

(1) A persons dismissal was a case of genuine redundancy if:

(a) the person’s 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.

(2) 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:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.”

Operational Requirements.

[11] The parties agree and I am satisfied that the job that the Applicant performed no longer exists and most of the duties performed by the Applicant are now performed by the Managing Director, Mr Bruyns. The decision to abolish the job was taken because the Respondent believed that because of the cashflow and the business environment the position should be abolished. The evidence is clear from the email exchange between the Applicant and Mr Bruyns during the period from 5 September 2012 to 18 September 2012 that Mr Bruyns was not happy with the relationship with the Applicant and raised some largely undefined performance concerns and this eventually led to the decision to abolish the position. The termination letter said: “although we have had some discussions about your performance lately, this decision is not a reflection on your performance”. In the email of 5 September 2012 Mr Bruyns wrote to the Applicant:

“Your body language and your actions suggest to me that you do not want to be with us, and maybe we should rather be discussing an orderly exit plan for yourself which allows us both to retain our dignity and financial health. While in the light of day this may sound confronting, we might both find that this is what is on our minds, but have been unable to articulate. The alternative is for me to push hard for what I want which will create lots of stress for you and I, and truthfully I just don’t have the stomach for it right now as I am sure you don’t either.” 2

[12] The redundancy was motivated, at least in part by a desire to get rid of the Applicant. However, I have no reason to doubt that there were cashflow problems and that the position has been abolished and has not been replaced. I am therefore satisfied that the requirements of Section 389(1)(a) have been met.

Did the employer comply with any obligation to consult?

[13] I am satisfied, and it is not in contention, that the employer did not consult with the Applicant about the redundancy. The employer also did not consider alternative roles for the Applicant and did not give the Applicant an opportunity through consultation to consider alternative roles.

[14] Mr Bruyns and the Applicant were discussing the future of the employment relationship and alleged performance concerns during the period from 5 September 2012 to 12 September 2012. There is no evidence that redundancy was decided upon as an option until after 12 September 2012 and it was first raised with the Applicant at a meeting on 17 September 2012. At the meetings on 17 and 18 September 2012 the Applicant was told that he was to be made redundant, he was not consulted about the matter.

[15] As there is no collective instrument the matter to be determined is whether or not there is an Award obligation to consult.

[16] I consider that the Professional Employees Award 2010 may be relevant. Neither party raised any other relevant Award.

[17] Clause 3.3 of the Professional Employees Award 2010 provides as follows:

“3.3 Information technology and telecommunications services stream

information technology industry means:

(a) the design and manufacture of computers and computer peripherals;

(b) the design and manufacture of telecommunications equipment;

(c) the design and manufacture of computer software;

(d) computer system installation, repair and maintenance;

(e) computer consultancy services;

(f) computer programming;

(g) system analysis services;

(h) the design, development and maintenance of online internet architecture and the facilitation of online content management; or

(i) activities which are incidental, ancillary or complementary to the activities set out in this definition.

Experienced information technology employee means a professional information technology employee with the undermentioned qualifications in any particular employment the adequate discharge of any portion of the duties of which employment requires:

(a) that they have graduated with a university degree, with a science or information technology major (three, four or five year course) and had four years’ experience on professional information technology duties since graduating; or

(b) that they, not having so graduated, have sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society plus a further four years’ experience on professional information technology duties.

Graduate information technology employee means a person who:

(a) holds a university degree with a science or information technology major (three, four or five year course) accredited by the Australian Computer Society at professional level; or

(b) has sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society.

professional information technology duties means duties carried out by a person in any particular employment the adequate discharge of any portion of which duties requires a person to:

(a) hold a university degree with a science or information technology major (three, four or five year course) accredited by the Australian Computer Society at professional level; or

(b) have sufficient qualifications and experience to be eligible for admission as a member of the Australian Computer Society.

Professional information technology employee means an adult person qualified to carry out professional information technology duties as defined. The term Professional information technology employee will embrace and include Graduate information technology employee and Experienced information technology employee as defined.”

[18] I am satisfied and it was not disputed that:

● InfoTrak carries out business in the information technology industry.
● The Applicant is a member of the Australian Computer Society.
● The Applicant carries out professional information technology duties.
● The Applicant holds qualifications in the field of information technology which at the time of engagement amounted to more than three years full time equivalent.

[19] I am therefore satisfied that the Applicant is a professional information technology employee and that the Professional Employees Award 2010 applied to the Applicant’s employment with the Respondent.

[20] The Award provides the following at Clause 9:

“9. Consultation regarding major workplace change

9.1 Employer to notify

(a) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(b) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

9.2 Employer to discuss change

(a) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 9.1, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(b) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 9.1.

(c) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.”

[21] I am satisfied that the redundancy of the Applicant is a major change with significant effects within the meaning of Clause 9.1 and that therefore the Respondent had a duty to discuss change in accordance with Clause 9.2. For the reasons discussed earlier I am satisfied, and it is not disputed, that the Respondent did not meet these consultation requirements.

Would it have been reasonable in all the circumstances for the Applicant to be redeployed within the employer’s enterprise?

[22] The Full Bench in Ulan Coal Mines Limited v Honeysett and others 3 set out how Section 389(2) should be approached.

“[26] First, s.389(2) must be seen in its full context. It only applies when there has been a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the dismissal was a genuine redundancy. In other words, if the dismissal is a case of genuine redundancy the employer has a complete defence to the application. Section 389(2) places a limitation on the employer’s capacity to mount such a defence. The defence is not available if it would have been reasonable to redeploy the employee. The exclusion poses a hypothetical question which must be answered by reference to all of the relevant circumstances.

[27] Secondly, it is implicit in the terms of s.389(2)(b) that it might be reasonable for an employee dismissed by one employer to be redeployed within the establishment of another employer which is an entity associated with the first employer. It follows that an employer cannot succeed in a submission that redeployment would not have been reasonable merely because it would have involved redeployment to an associated entity. Whether such redeployment would have been reasonable will depend on the circumstances. The degree of managerial integration between the different entities is likely to be a relevant consideration.

[28] Thirdly, the question posed by s.389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered.” 4

[23] The Full Bench considered what may be relevant in considering whether or not redeployment would be reasonable.

“Of course the job must be suitable, in the sense that the employee should have the skills and competence required to perform it to the required standard either immediately or with a reasonable period of retraining. Other considerations may be relevant such as the location of the job and the remuneration attaching to it.” 5

[24] The Applicant says that he was open to all options for redeployment. He says that after his termination and in the lead up to his termination he applied for many jobs and attended many interviews for jobs. This included jobs whose rate of pay was less than his role with the Respondent and different types of jobs to his role with the Respondent. This was not contested. The Respondent says that in an email dated 12 September 2012 6 the Applicant said that “the job market is tough given the economy and in the circumstances given my level it would take me considerable time to find another comparable role.” I do not consider that this statement ruled out consideration by the Applicant of lower paid jobs. I consider it would be inappropriate to speculate as to whether or not the Applicant would have accepted an alternative role in an environment where the employer did not consider alternative roles or give the Applicant an opportunity through consultation to consider alternative roles.

[25] It is not suggested that there are any opportunities for redeployment in associated entities. The Applicant suggested that there were three opportunities for redeployment which should have been considered.

[26] The first of these positions was a tester position. The Applicant accepts that this position was advertised and filled on 10 September 2012. 7 The second of these positions was a developer position. The Applicant accepts that this position was advertised and filled on 23 August 2012.8 As these two positions were filled prior to the redundancy occurring and prior to there being any evidence of a decision being made about redundancy I do not consider that the Applicant could have been redeployed to these positions.

[27] The third of these positions was a senior developer position. The Respondent says that this position was advertised and filled on 27 August 2012. 9 The Applicant doubts this was the position. The Applicant points to an advertisement for the position which was still in place after this time. However, the Respondent says that the spreadsheet it produced covered all positions filled by the Respondent and that there have been no subsequent positions filled in the period from October 2012 to February 2013 except for replacements for the persons who were in the tester and the developer position referred to earlier. The Applicant produced no evidence to contradict this. I cannot conclude that it would have been reasonable to redeploy the Applicant into the senior developer position as I am not satisfied that the position was available.

[28] In all the circumstances I am not satisfied that it would have been reasonable to redeploy the Applicant.

Conclusion regarding the threshold issue - genuine redundancy

[29] The termination of the Applicant was not a genuine redundancy because there was a requirement to consult about the redundancy pursuant to the Award which was not complied with.

[30] If that consultation requirement had been met it is possible that the discussions between the parties might have led to alternative solutions. It is possible that the redundancy might have been avoided because the parties agreed upon a productive way for the job to continue without the need for the redundancy. It is also possible that other redeployment options might have emerged through the consultation process.

Was the termination unfair?

[31] The legislation requires me to consider the following matters in a situation where the small business code does not apply.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.

Was there a valid reason? (s.387(a))

[32] The termination was a redundancy but not a genuine redundancy.

[33] The Full Bench in UES (Int'l) Pty Ltd v Ball 10 recently looked at the issue of redundancy and valid dismissal.

“[42] As we have already indicated, in our view the reasons for the dismissal of Mr Ball by UES were not related to his capacity or conduct (including its effect on the safety and welfare of other employees). Accordingly, there cannot have been and was not a valid reason for his dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). In the circumstances of this case we regard it as a neutral matter with respect to our consideration as to whether Mr Ball’s dismissal was harsh, unjust or unreasonable.”

[34] In my view the Applicant in this case was not dismissed for reasons related to his capacity or conduct. In this case the Applicant’s position was redundant. However, it is not a genuine redundancy due to the failure to consult.

[35] In this situation there was no valid reason for the termination related to capacity or conduct. In the circumstances of this case it is a neutral matter with respect to my consideration as to whether the Applicant’s dismissal was harsh, unjust or unreasonable.

Notification and opportunity to respond (ss.387(b) and (c))

[36] The matters in s.387(b) and (c) of the Act deal with whether there was procedural fairness in respect of a reason for dismissal related to the Applicant’s capacity or conduct. As a matter of fact the Applicant was not notified of or given an opportunity to respond to a reason for his dismissal related to his capacity or conduct. However given the reasons for his dismissal, I regard them as neutral matters with respect to my consideration as to whether the dismissal was harsh, unjust or unreasonable.

Support person (s.387(d))

[37] The Respondent allowed the Applicant to have a support person present at the meeting when he was made redundant. I regard this as a neutral matter with respect to my consideration as to whether the dismissal was harsh, unjust or unreasonable.

Unsatisfactory performance (s.387(e))

[38] The dismissal did not relate to his unsatisfactory performance, so this matter is not relevant to my consideration and I regard it as a neutral matter as to whether dismissal was harsh, unjust or unreasonable.

Size of the enterprise and human resource management (s.387(f) and (g))

[39] The Respondent is a small organisation without human resource management expertise. I regard the requirement to consult about redundancy to be a common sense matter. In other words a reasonable person would not generally regard a termination for reasons of redundancy to be fair in the absence of consultation about the reasons and an opportunity to consider alternatives and measures in mitigation. I therefore do not regard the size of business or the absence of expertise as affecting the lack of consultation. In these particular circumstances I do not regard this as a significant matter in favour of a finding that the dismissal was fair.

Other matters (s.387(h))

[40] There were sound, defensible and well-founded reasons for the dismissal, being that the Respondent no longer required the Applicant’s job to be performed by anyone because of changes in the operational requirements of its enterprise. This is a matter which tells against a finding that the termination was harsh, unjust or unreasonable.

[41] The Respondent failed to consult with the Applicant as required by the consultation clause in the Award. In the circumstances I have no doubt that the failure to so consult was unreasonable.

[42] The evidence suggests that there were no problems with the relationship until after 6 August 2012. In other words the problems in the relationship were confined to a period of approximately one month. There was some suggestion in the submission of the Respondent that there was a problem with an earlier leave application being at short notice, however, the Respondent accepted the evidence of an email produced by the Applicant which showed that notice of the leave had been given in December 2011 and that Mr Bruyns had at that time approved the leave, subject to completion of the appropriate form. I am satisfied that there is no basis for concluding that there were any performance issues prior to August 2012.

[43] The parties agreed that I should rely on the documentary evidence of the emails and correspondence during the period prior to the termination. A consideration of these materials shows that the Respondent’s concerns about the performance of the Applicant were not well defined and I accept that they were not clearly understood by the Applicant. Given the relatively short period of performance concerns, the lack of any warning, and the lack of clarity I consider that it is possible that the concerns may have been resolved through consultation. The documentary evidence makes it clear that the Respondent a month prior to the termination considered that there were performance issues and made a few attempts to raise these matters and then decided that the best option was to end the employment relationship. The Respondent does not hide the fact that the idea of abolishing the position was the solution arrived at to achieve the ending of the employment relationship. Essentially Mr Bruyns felt after a short period of dissatisfaction that he was not getting value for money from the Applicant’s position and so decided without consultation or warning to abolish it. There is no basis in the evidence provided for any finding of poor performance or misconduct on the part of the Applicant.

[44] I am therefore satisfied that if consultation had occurred it is possible that it might have led to Mr Bruyns changing his mind about the need to abolish the position because a satisfactory and productive way for the relationship to proceed may have been found. I do not consider this to be a probability but it is not a remote possibility.

[45] As discussed earlier I also consider that consultation could have led to alternative options for redeployment. However, given the skills of the Applicant, the size of the business and the matters I discussed earlier when considering the issue of redeployment I do not consider that redeployment was very likely.

[46] The period of employment of the Applicant was one year. The length of service is not a significant factor in finding that the termination was harsh.

Conclusion regarding harsh, unjust or unreasonable

[47] Taking into account the matters referred to above, I am satisfied that the Applicant’s termination by the Respondent was unjust and unreasonable. The failure to consult was unreasonable and unjust, notwithstanding the valid reason for his dismissal, namely the fact that his job was no longer required to be performed for operational reasons, and the due weight I have given to that valid reason.

Remedy

[48] The Applicant does not seek reinstatement. The Applicant started looking for alternative work shortly before the termination. The Applicant made dozens of applications and attended approximately a dozen interviews. The Applicant was successful in finding alternative employment approximately one month after the termination. The Applicant received two weeks pay in lieu of notice. Some money owing to the Respondent in the form of overpaid leave was deducted. I do not consider that I should take this deduction into account since it relates to the period prior to the termination. The Applicant is still employed in the new job and receives the same level of pay as he did when working for the Respondent.

[49] In all of the circumstances I consider that reinstatement would be inappropriate. I consider that an order for compensation would be appropriate in the circumstances of this case.

[50] In considering compensation I am required by Section 392(2) to consider the following:

“(2) In determining an amount for the purposes of an order under subsection (1), FWA 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 FWA considers relevant.”

[51] In considering these matters I have not included 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.

[52] Nothing was put to me that suggests that any order I might make would affect the viability of the enterprise.

[53] The length of service with the employer of one year is a neutral factor in this case.

[54] The Applicant has made adequate efforts to mitigate his loss and find alternative employment and I would make no deduction on this account. This was not contested.

[55] I have also made no deduction for misconduct of the Applicant as I do not consider that any misconduct has been established.

[56] The Applicant has earned four months pay ($39,755) in the period since the termination and the date of this decision. In addition to this the Applicant has been paid two weeks notice.

[57] The period between the making of the order for compensation and the actual compensation will be fourteen days.

[58] I consider that if the Applicant had not been dismissed I consider that he would not have been employed for more than a further six months. This is because I consider that the period of future employment would have been short if options to avoid redundancy or find suitable redeployment could not be found. The period of six months is based upon my estimate of the likelyhood of an alternative to redundancy being reached. Another way of looking at this is that I estimate that if an alternative to redundancy had been arrived at then the employment would be likely to have continued for two further years but I estimate that this should be reduced by a 75% contingency because I estimate that it is only a 25% possibility that this would be achieved.

[59] The income that the Applicant would have earned during this period was $59,633 (plus superannuation). I deduct from this amount the following amounts: four months pay, two weeks notice and two weeks for the time between the order and the payment of compensation, which totals $49,677.50 (plus superannuation). I do not consider that any further deduction for contingencies is appropriate as the only unknown is the period of likely employment with the Respondent if the termination had not occurred and I have allowed for this uncertainty. This leaves an amount of compensation of one month’s pay which is $9,935.50 plus 9% superannuation making a total of $10,829.70, less appropriate taxation.

[60] An Order will be issued requiring the payment of this compensation within 14 days. I will provide the Respondent with liberty to apply to vary the time period.

COMMISSIONER

Appearances:

The Applicant represented himself.

Mr Stelling, Director and My Bruyns, Managing Director of InfoTrak Pty Ltd represented the Respondent.

Hearing details:

2013

Melbourne

February 14

 1   .Attachment to the submission of the Respondent.

 2   Email of 5 September 2012 attached to the Statement of the Applicant.

 3   [2010] FWAB 7578.

 4   [2010] FWAB 7578 at paragraphs 26 to 28

 5   [2010] FWAB 7578 at paragraph 34.

 6   Attached to the Statement of the Applicant.

 7   Position 16 on the spreadsheet of employees during the year October 2011-October 2012 attached to the Submission of the Respondent.

 8   Position 10 on the spreadsheet of employees during the year October 2011-October 2012 attached to the Submission of the Respondent.

 9   Position 2 on the spreadsheet of employees during the year October 2011-October 2012 attached to the Submission of the Respondent.

 10   [2012] FWAFB 5241.

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