Mr Hansjorg Mikl v Cape Australia Onshore Pty Ltd

[2020] FWC 191

[2020] FWC 191

FAIR WORK COMMISSION

DECISION

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

Mr Hansjorg Mikl
v
Cape Australia Onshore Pty Ltd
(U2019/1285)

DEPUTY PRESIDENT ASBURY BRISBANE, 14 JANUARY 2020

Application for an unfair dismissal remedy.

BACKGROUND

[1] In a Decision issued on 17 December 2019 1, I found that Mr Hansjorg Mikl had been unfairly dismissed by Cape Australia Onshore Pty Ltd (the Respondent) and that Mr Mikl should be awarded an amount of compensation as remedy for his unfair dismissal. In summary I concluded that:

1. An order for the payment of compensation would not affect the viability of the Respondent’s business (s.392(2)(a)).

2. The length of the Mr Mikl’s service favoured the making of an order for compensation and no diminution of any amount that might otherwise be determined is warranted because of this circumstance (s.392(2)(b)).

3. I required further information to determine the remuneration that Mr Mikl would have been likely to receive, but for his dismissal (s.392(2)(c)).

4. I would further consider whether to make a deduction for contingencies when the information I required to assess compensation had been provided.

5. I would make no deduction on account of a failure to mitigate loss (s.392(2)(d)).

6. I would consider the appropriate deduction for remuneration earned since dismissal when the further information I required was provided (s.392(2)(e)).

7. I would consider whether to make a deduction for income likely to be earned during the period between the making of the order and the actual compensation when the further information I required was provided (s.392(2)(f)).

8. I would make a deduction for payment in lieu of notice and severance payments made to Mr Mikl.

9. I would make no deduction for misconduct (s.392(3)).

10. I would consider whether it is necessary to cap the amount payable to Mr Mikl when the further information I required to calculate compensation is provided.

[2] I issued the following Directions in relation to the information I required:

•  The Respondent is to provide a statement to the Commission (and serve such statement on the Applicant) made by an appropriately authorised person confirming whether it still employs persons on the Orica site in Gladstone in the capacity of Advanced Scaffolder, the number of such employees and the likely duration of their employment;

•  Mr Mikl to provide a statement to the Commission (and serve such statement on the Respondent) detailing all income earned by him from other non-refundable sources from the date of his dismissal until the date of release of this decision;

•  Mr Mikl is to provide a statement to the Commission (and serve such statement on the Respondent) detailing all income he is likely to earn from other non-refundable sources up until 10 January 2020.

[3] In response to the Directions Mr Mikl filed a statutory declaration stating that following his dismissal he has earned a gross amount of income of $18,564.00 through his handyman business, and that he will not be earning any income from other non-refundable sources up until 10 January 2020. Mr Mikl also stated that following his dismissal he completed work for the Respondent on a shutdown but did not have payslips to evidence his earnings.

[4] A statement was filed by Mr Jonathon Lord, Employee Relations Principal of Altrad Services Pty Ltd, which Mr Lord states is the entity Cape Australia Onshore Pty Ltd is now known as. Mr Lord stated that as of 18 December 2019, the Respondent employed three persons on the Orica Site in Gladstone in the capacity of Advanced Scaffolder, and that the likely duration of employment of those employees was difficult to determine as the Respondent’s contract with Orica expired on 30 September 2019, and the Respondent was now engaged on a month by month basis.

[5] Mr Lord also filed payslips evidencing Mr Mikl’s earnings for work he completed following his dismissal, which indicate Mr Mikl performed work on a casual basis from 22 February 2019 to 20 March 2019 and earned an amount of $15,925.19. In response to a further Direction from me, Mr Lord provided payslips evidencing Mr Mikl’s earnings in the year prior to his dismissal.

[6] Both parties were given an opportunity to seek to be heard in relation to the additional material. Neither party sought to be heard, and I will proceed to calculate an amount of compensation to be awarded to Mr Mikl based on the information in my Decision and the additional evidence outlined above.

[7] In relation to the consideration in s. 392(2)(c) of the Act, as at 18 December 2019 when Mr Lord provided his declaration, the Respondent still employed three Advanced Scaffolders at the Orica site in Gladstone and was engaged on a month to month contract. At the time Mr Mikl was dismissed, the Respondent employed six scaffolders. It is not known when that number reduced. However, Mr Mikl had been employed at that site since February 2015 and I see no reason why Mr Mikl could not have remained in employment for at least a year from the date of his dismissal – 18 January 2019.

[8] Mr Mikl’s ordinary weekly rate of pay was $1,388.52 based on the employment separation certificate provided by the Respondent which was tendered by Mr Mikl. That separation certificate further states that Mr Mikl’s gross weekly wage was $2,246.71. Mr Mikl’s payslips for the year prior to his dismissal establish that in the twelve month period of the week to 19 January 2018 to the week to 11 January 2019 (excluding the payslip recording Mr Mikl’s termination pay) Mr Mikl actually earned $133,237.89 including overtime which was regularly worked by Mr Mikl. For the purpose of calculating compensation I assume that this amount would also have been earned by Mr Mikl had he remained in employment. I make this assumption on the basis of the previous payslips and the work for the Respondent that was undertaken on shutdowns by Mr Mikl after his employment was terminated.

[9] Accordingly I find that for the purposes of s. 392(c) of the Act the remuneration that Mr Mikl would have received or would have been likely to receive is an amount of $133,237.89. In relation to remuneration earned between the dismissal and the making of an order for compensation as provided in s. 392(e) of the Act, at the point this application was heard, Mr Mikl stated that he had earned an amount of approximately $2000.00 from casual work at the motel where his wife is employed. The further material filed by Mr Mikl in accordance with my directions indicates that the total amount earned by Mr Mikl from a handyman business operated by him in the period from 18 January 2019 to 10 January 2020 (including the $2000.00 previously referred to) is $18,564.00. Material filed by the Respondent indicates that Mr Mikl has earned an amount of $15,925.19 from undertaking casual work for the Respondent on shutdowns. Accordingly, the total income to be taken into account for the purposes of s. 392(e) of the Act is $34,489.19.

[10] As previously noted, Mr Mikl was paid the following amounts on termination of his employment: four weeks in lieu of notice; seven weeks severance payment and a further three weeks pay totalling fourteen weeks. Based on the payslips and Employment Separation Certificate tendered by Mr Mikl I find that Mr Mikl was paid $15,967.38 for notice and severance. I have not had regard to the amounts paid to Mr Mikl for accrued annual leave and untaken rostered days off, as they are entitlements arising from work performed by Mr Mikl are payable regardless of any other amounts payable by way of compensation for an unfair dismissal. As I have previously determined, the amount of $15,967.38 will be taken into account in assessing compensation.

[11] For the purposes of s. 392(5) the cap for compensation is the total amount of remuneration received by Mr Mikl for the 26 week period prior to his dismissal. On the basis of the payslips filed by the Respondent that amount is $66,307.45. The amount is less than $72,700.00 which is half the amount of the high income threshold immediately before the dismissal (then $145,400.00) and accordingly the compensation cap with respect to the assessment of compensation for Mr Mikl’s unfair dismissal is $66,307.45 – the lesser amount.

[12] I therefore conclude as follows:

1. The remuneration that Mr Mikl would have received or would have been likely to receive if the Respondent had not terminated his employment is $133,237.89.

2. Monies earned since termination to be deducted from this amount are $34,489.19 comprising $18,564.00 earned by Mr Mikl from his handyman business and $15,925.19 from undertaking casual work for the Respondent on shutdowns, leaving an amount of $98,748.70.

3. A further amount of $15,967.38 paid to Mr Mikl as notice and severance payments will also be deducted leaving an amount of $82,781.32.

[13] From that amount I have determined to deduct a further amount of 50% for contingencies. I make this deduction on the basis that the further material filed by the Respondent indicates that since the Applicant was dismissed, the total number of Advanced Scaffolders at the Orica site has reduced from 6 to 3 and that there is some probability that the continuing requirement for reduction in numbers would have resulted in the Applicant eventually being selected for redundancy. It is also the case that the Applicant sustained an injury in July 2018 and at the time of the hearing was unable to work as a scaffolder. It is not clear how the Applicant sustained the injury and he was not cross-examined during the hearing in relation to it. At best, there is some probability that this injury would have occurred regardless of his dismissal and that it would have prevented him from working and this is a matter to which I have had regard. Applying a 50% deduction for contingencies results in an amount of compensation of $41,390.66.

[14] As previously determined I make no deduction for misconduct and I am satisfied that Mr Mikl made reasonable attempts to mitigate the loss of his employment and that no deduction should be made on that basis.

CONCLUSION

[15] I have determined to award Mr Mikl an amount of compensation of $41,390.66. An Order will issue with this Decision requiring that this amount be paid to Mr Mikl within 14 days. The Order will be made against Altrad Services Pty Ltd, which Mr Lord states is the entity Cape Australia Onshore Pty Ltd is now known as. Pursuant to s.586 of the Fair Work Act 2009 the name of the Respondent is hereby amended to Altrad Services Pty Ltd.

DEPUTY PRESIDENT

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 1   [2019] FWC 8503