Mr Luke Webster v Mercury Colleges Pty Limited
[2011] FWA 4772
•28 JULY 2011
[2011] FWA 4772 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Luke Webster
v
Mercury Colleges Pty Limited
(U2009/14175)
SENIOR DEPUTY PRESIDENT DRAKE | SYDNEY, 28 JULY 2011 |
Termination of employment.
[1] Following the issue of my previous decision 1 I requested Mr Webster to provide information confirming his income since termination of employment.
[2] Mr Webster responded by providing me with a statutory declaration dated 13 June 2011. The statutory declaration attached a letter from an employer with whom he had earned income following his return to Great Britain and a letter from the British Department for Work and Pensions confirming his allowance pursuant to an income based jobseekers allowance.
[3] I provided a copy of these documents to Mercury Colleges Pty Limited (the College) and on 13 July 2011 I received a response on their behalf from a firm of solicitors who have not previously appeared in this matter. I have taken into account the submission provided by those solicitors.
[4] The submissions from the College are misconceived. They appear to have concluded from my previous reasons for decision that the College would have necessarily been entitled to terminate Mr Webster’s employment with notice. This is not an available conclusion from my reasons for decision, and therefore much of the submission is unhelpful or irrelevant.
[5] I have taken into account all the circumstances of this case including the matters referred to in s392(2) of the Fair Work Act 2009 (the Act).
[6] I have given consideration to the effect of any order I might issue on the viability of the College’s enterprise. I have concluded that no order I make will affect the viability of the College.
[7] I have considered Mr Webster’s length of employment. It was a neutral consideration.
[8] I have considered the remuneration Mr Webster would have been likely to have received if he had not been dismissed. I find that Mr Webster’s average weekly gross wage whilst working for the College was $708.00. I have decided that it is more likely than not that Mr Webster would have retained his position for 6 months from the date on which his employment was terminated. I have concluded that the remuneration that Mr Webster would have received had he not been dismissed was $18,408.00 gross.
[9] I have given consideration to the efforts of Mr Webster to mitigate his loss. From the date of dismissal until today’s date Mr Webster has earned 1,014 British pounds ($1,533.64) from teaching duties in Great Britain between 22 February 2010 and 31 March 2010.
[10] Between 25 March 2010 and 11 August 2010 Mr Webster received British social security benefits of 1,138.53 British pounds as a jobseekers allowance.
[11] From October 2010 Mr Webster has been studying for his masters degree and has not had any social security benefits or any income. I find that from this date Mr Webster was not attempting to mitigate his loss.
[12] Having regard to the date of termination of employment, and the particular circumstances applicable to Mr Webster because of his visa conditions, I have concluded that it is reasonable to infer a period of dislocation in employment without any reflection on Mr Webster’s attempts to mitigate his losses. Mr Webster had to leave Australia within 28 days of termination of his employment, return to Great Britain and re-establish himself. I have therefore drawn no adverse inference from Mr Webster’s failure to earn any income between the date of termination and 22 February 2010.
[13] I have not taken into account when considering any compensation payable to Mr Webster, any amount which Mr Webster received for the four and one half months he was unemployed and in receipt of a jobseekers allowance.
[14] As Mr Webster is still studying for his masters there is no amount likely of any income to be earned between the making of my order for compensation and the payment of compensation.
[15] In considering an amount of compensation payable to Mr Webster I have concluded that there was no matter of misconduct on Mr Webster’s account that would cause me to reduce the amount of compensation payable. On the contrary the conduct of the Principal of the College in terminating Mr Webster’s employment with no notice, no investigation and no application of the principles of fairness would advocate for the opposite approach.
[16] In this matter I have decided to order compensation payable to Mr Webster in the sum of $16,874.36 by close of business 9 August 2011. An order to this effect will issue immediately.
SENIOR DEPUTY PRESIDENT
1 [PR507818] - 8 April 2011
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