Mr Michael Cincotta v Coffee Management and Solutions Pty Ltd

[2015] FWC 7389

[2015] FWC 7389

FAIR WORK COMMISSION

DECISION

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

Mr Michael Cincotta
v
Coffee Management and Solutions Pty Ltd
(U2015/2743)

DEPUTY PRESIDENT BOOTH SYDNEY, 28 OCTOBER 2015

Application for relief from unfair dismissal – compensation decision.

[1] Mr Michael Cincotta was unfairly dismissed by Coffee Management Solutions Pty Ltd (Coffee Management) on 14 January 2015. For reasons that I outline below I have ordered that Coffee Management pay Mr Cincotta compensation of $10,621.50 less appropriate taxation in lieu of reinstatement

Background

[2] Mr Cincotta worked for Coffee Management and Solutions Pty Ltd (Coffee Management) when he was dismissed on 14 January 2015. He made an application to the Fair Work Commission for an unfair dismissal remedy. Coffee Management objected to his application on the ground that Mr Cincotta was not a person protected from unfair dismissal because he had not served the minimum employment period. 1 The parties agree that Coffee Management is a Small Business Employer and the minimum employment period for a Small Business Employer is one year.

[3] Mr Cincotta also worked for The Coffee Galleria Pty Ltd (Coffee Galleria). He commenced employment with Coffee Galleria on either 21 or 26 June 2013.

[4] On 27 July 2015 2 I found that Mr Cincotta’s service with Coffee Galleria counted as service with Coffee Management for the purpose of the minimum employment period. I found that he had served the minimum employment period and his application could be heard on the merits.

[5] On 14 September 2015 I heard his application on the merits. Coffee Management neither made submissions (by the due date or otherwise) nor appeared. I gave an oral decision finding that Mr Cincotta had been unfairly dismissed. 3 I found that it was not appropriate to reinstate Mr Cincotta. I found that in all the circumstances it was appropriate to make an award of compensation to Mr Cincotta.

[6] On the material before me I could not determine the amount of compensation and I gave directions to Mr Maiorana, Mr Cincotta’s representative, to provide submissions on compensation by 21 September 2015, with Coffee Management having until 28 September 2015 to provide their response. Mr Maiorana provided submissions by the due date but Coffee Management has not provided any submissions. In my decision of 14 September 2015 I indicated that unless I received submissions to the contrary, I would make a decision on the papers. This is my decision in relation to the amount of compensation after consideration of the written submissions made on behalf of Mr Cincotta and the submissions and evidence before me on 14 September 2015.

Remedy

[7] I have decided that it would not be appropriate to reinstate Mr Cincotta and it would be appropriate in all the circumstances to order payment of compensation to Mr Cincotta. 4

[8] In determining the amount of compensation I must apply the provisions of s.392 of the Act and the various decisions of the Commission that provide guidance on the application of this provision. I drew Mr Maiorana’s attention to a recent decision of a Full Bench of the Commission in Mr John McCulloch v Calvary Health Care Adelaide 5(Calvary). His submissions and my decision have been guided by the Calvary decision and previous decisions of the Commission relied upon in Calvary.6

[9] I have decided to order that Coffee Management pay Mr Cincotta compensation in lieu of reinstatement. 7

[10] Coffee Management made no submissions in relation to the effect on an order for compensation on the viability of the enterprise pursuant to s. 392(2)(a) of the Act. I have no reason to conclude that the amount I will order will have a detrimental impact on the enterprise. For this reason, I do not intend to adjust the amount.

[11] Mr Cincotta was employed for over 18 months with Coffee Management and I consider that in this circumstance the amount I will order is not inappropriate. 8

[12] Mr Cincotta earned $1,180.00 plus superannuation per week at the time of dismissal. His evidence, which I accept, was that he was happy in his job, got on with the staff, had no intention to resign from Coffee Management and until 13 January 2015, had no indication from his employer that he would be dismissed. I estimate that he would have remained employed for 12 months had he not been dismissed and would have earned $61,360 plus 9.5% in superannuation contributions, totalling $67,189.20. I do not consider that it is appropriate to discount this amount on account of contingencies. 9

[13] Mr Cincotta made appropriate effort to mitigate his loss and obtained new employment 6 weeks after his dismissal on 27 February 2015, earning $1,180.80 plus superannuation per week. He remained in this employment as at the date of hearing on 14 September 2015. I calculate the period between gaining new employment and the end of the anticipated period of employment with Coffee Management, as 46 weeks. I calculate that he will earn $54,316.80 plus 9.5% in superannuation contributions in his new job during this period, totalling $59,476.90.

[14] I consider that it is appropriate to discount this amount, on account of the contingency that he may not remain in employment with his new employer for the remainder of the 46 week period. I apply a 25% contingency on the portion of earnings expected to be earned between the date of the Order and the end of the 46 week period of employment, a period of 9 weeks.

[15] The amount anticipated to be earned in the 9 week period is $10,627.20 plus 9.5% superannuation, totalling $11,636.78. The 25% contingency amounts to $2,909.20 (25% of 9 weeks pay) and this amount will be deducted from the anticipated earnings of the 46 week period to yield an amount of $56,567.70. This figure is to be deducted from the amount he would have earned if he had not been dismissed 10 to arrive at the amount of $10,621.50.11

[16] I estimate that he will earn $2,361.60 plus 9.5% in superannuation being $2,585.95 between the date of my Order and the date of payment, being within 14 days of the Order. 12 This amount is already included in the calculations above.

[17] There are no other matters that I consider relevant. 13 I note that Mr Cincotta did not receive any pay in lieu of notice upon dismissal and therefore, no further deductions are required.

[18] I do not consider that it is appropriate to reduce the amount of compensation on account of misconduct 14 and I have not included any amount for shock, distress, humiliation or analogous hurt.15

[19] The amount of compensation Ordered is less than the compensation cap in accordance with s. 392(5).

[20] The amount I award is $10,621.50 less appropriate taxation. This is calculated as follows:

Amount he would have earned if he had remained with Coffee Management for 12 months: $67,189.20

Less the amount of earnings, less contingency, from 27 February to date of anticipated employment: $56,567.70

Equals compensation of $10,621.50

[21] This amount is to be paid by Coffee Management to Mr Cincotta within 14 days. An Order to this effect will issue with this decision.

[22] Mr Cincotta seeks costs in relation to his application and I will issue a separate decision in relation to this application shortly.

DEPUTY PRESIDENT

Appearances:

M. Maiorana, Maiorana Lawyers, for the Applicant.

Hearing details:

2015

Sydney:

14 September.

Final written submissions:

Applicant Submissions on Compensation and costs received 17 September 2015.

 1 Section 383 Fair Work Act 2009.

 2   Michael Cincotta v Coffee Management and Solutions Pty Ltd[2015] FWC 5021.

 3   Transcript PN1068 to 1108.

 4 Section 390(3)(a) and (b) Fair Work Act 2009.

 5   [2015] FWCFB 2267.

 6   Sprigg v Paul's Licensed Festival Supermarket (1988) 88 IR 21; Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109.

 7   Section 392(1) Fair Work Act 2009.

 8 Section 392(2)(b) Fair Work Act 2009.

 9   Section 392(2)(c) Fair Work Act 2009.

 10   Section 392(2)(c) Fair Work Act 2009.

 11 Section.392(2)(d) and (e) Fair Work Act 2009.

 12 Section 392(2)(f) Fair Work Act 2009.

 13 Section 392(2)(g) Fair Work Act 2009.

 14 Section 392(3) Fair Work Act 2009.

 15 Section 392(4) Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR573327>