Mr Neil Andrew Longmore v Trinity Smash Repairs T/A Trinity Smash Repairs
[2018] FWC 5552
•4 SEPTEMBER 2018
| [2018] FWC 5552 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Neil Andrew Longmore
v
Trinity Smash Repairs T/A Trinity Smash Repairs
(U2018/4272)
COMMISSIONER SPENCER | BRISBANE, 4 SEPTEMBER 2018 |
Application for an unfair dismissal remedy – No valid reason for dismissal – No procedural fairness – Application granted.
BACKGROUND
[1] On 24 April 2018, Mr Neil Andrew Longmore (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) alleging that the termination of his employment from Trinity Smash Repairs (the Respondent) was unfair. The parties are located in Cairns, Queensland.
[2] Both parties were self-represented. Mr Gerald Hill, the Owner of the Respondent appeared with Ms Patricia Cuda, who stated she had recently volunteered to assist Mr Hill with his bookkeeping.
[3] The Respondent informed the Commission that their previous payroll officer had been charged with embezzling funds from the business. The Respondent indicated that this had contributed to some difficulties in extracting relevant payroll information regarding the Applicant’s employment and entitlements. The proceedings were undertaken by Determinative Conference at the Cairns courthouse on 1 August 2018.
[4] The Applicant’s employment was terminated on 4 April 2018. Neither party was able to confirm the exact date of commencement, however it was understood that the Applicant commenced employment in 2004 and had at least 13 years of continuous service. On 27 April 2018, the Respondent was directed to file a Form F3 response to the application by 4 May 2018. The Respondent failed to file this response as required by the Fair Work Commission Rules 2013. However, Directions were set and both parties filed some material.
[5] On 24 May 2018, the Applicant and Respondent attended a conciliation conference before a staff conciliator, however the matter was unable to be resolved and was allocated to the Commission as currently constituted.
[6] On 18 June 2018, a telephone conference was convened that was attended by both the Applicant and the Respondent. Following the conference, an exchange of documents arising from the conference occurred, in an endeavour to resolve the matter. The Applicant and the Respondent complied with these requests for documents. Following receipt of those documents, the following correspondence was forwarded by registered mail to the Applicant:
“Dear Parties
The Commissioner notes that during the conference, the Applicant indicated that he had a medical clearance permitting his return to work. The Applicant subsequently provided that medical certificate to Chambers, however the Commissioner notes that it is not a clearance for return to work. The certificate dated 15 March 2018, states that:
“The patient was totally incapacitated for work, and was discharged on 28/2/18. The patient is to attend the Out-Patient Dept. and. I anticipate, will be unfit for duty up to 7th April, 2018 and including 7/4/18.”
The Commission had been advised that the parties attended conciliation before the Fair Work Ombudsman and agreed on the terms for a Deed of Release prepared by the Fair Work Ombudsman. Again, the Commission has been advised that the deed includes a full and final release clause, relating to ‘…any liability past, present or future from all claims, suits, demands, action or proceedings arising out of or in connection with the Applicant’s employment with the Respondent’. Accordingly, the Commissioner considers that such a release agreed between the parties would act as a bar to progressing the unfair dismissal application, as all matters arising out of the period of employment were resolved as per the deed, and therefore this applies to the present proceedings.
Accordingly, the parties are requested to contact Chambers if they consider any of this information is incorrect by 3.00 pm, Friday 6 July 2018. If no such contact is made, the Commissioner intends to close the file.”
[7] The Applicant disputed that the parties had reached a full and final binding settlement before the Fair Work Ombudsman that included settling the unfair dismissal proceedings. No further evidence was presented regarding the process with the Fair Work Ombudsman. The Applicant stated that he did not sign the deed, as it had not been made clear that it was a full and final settlement that would prevent him from proceeding with the unfair dismissal application. The amount referred to in the deed represented a payment for wages in lieu of notice and annual leave. The amount was not paid by the Respondent and they did not argue this as a bar to these proceedings.
BACKGROUND
[8] The evidence of the Applicant was that in 2004, he commenced fulltime employment with the Respondent. The Applicant undertook duties repairing damage to vehicles, including spray painting. The Applicant injured his finger on 26 February 2018, whilst renovating his house. The injury resulted in the amputation of the final two joints of the Applicant’s left index finger.
[9] The Applicant stated he was right-handed and that this injury would not have prevented him from undertaking the repair and painting duties on vehicles as he had been required to do. Neither prior to the termination, nor at the time of the hearing, did the Applicant provide a full clearance to the Respondent.
[10] On 4 April 2018, the Applicant received the following letter of termination from the Respondent:
“04 April 2018
Hi Neil
Sorry I missed you.
Unfortunately, Trinity Smash Repairs does not have enough work to keep you employed with the Business.
As a business decision, we feel that the injury you have sustained to your finger will greatly impact your working ability. I believe that this will assist you in being able to access your super under permanent impairment.
As you also were notified overtime has ceased as the Business is not in a position to be paying penalty rates to its employees.
We have no other option but to keep Ben on, as he is on trade wage and only working 38 standard hours per week, which he is happy to accommodate.
We thank you for being a valuable asset to the company and wish you luck in your future endeavours.
Regards,
Gerald Hill
Trinity Smash Repairs” 1
[11] In his Form F2, the Applicant stated that he considered the dismissal was unfair for the following reasons:
“The injury to my finger has healed and will not affect my ability to do my job.
I worked for 14 years with only 1.5 days absence. I never received any complaints about my performance from the employer.
My response was absolute disbelief considering the amount of commitment I put in all those years.” 2
[12] In the Applicant’s written submissions, he stated that on 26 February 2018, he attended the Cairns hospital and obtained a medical certificate. Subsequent to providing this certificate to the Respondent, the Applicant stated that he was told that he would need a medical clearance to return to work.
[13] The Applicant stated that he then returned to the hospital and obtained an amended medical certificate, that stated the Applicant “…was admitted to the Cairns Hospital as an in-patient on 26/2/2018 suffering from medical condition [sic]. The patient was totally incapacitated for work and was discharged on 28/2/2018. The patient is/is not to attend the Out-Patient Dept. and, I anticipate, will be unfit for duty up to 7th April, 2018 and including 7/4/18.” The Applicant considered that this medical certificate constituted a clearance, as he thought that as it stated he was unfit until 7 April 2018, he would be clear to return to work thereafter.
[14] The Applicant submitted that on the day of the termination, the Respondent had told him “he didn’t want pay me any more and made no mention of any medical clearance.” 3 The Respondent stated that the termination letter was prepared prior to 4 April 2018, but Mr Hill stated he did not draft this letter.
[15] Mr Hill also stated that he had employed another employee, Ben, to undertake the duties that the Applicant had not been able to undertake during his absence, due to his injured finger. Mr Hill conceded that but for the injury, the Applicant would have remained in his employment. However, he argued that as the Applicant had not provided a medical clearance, the Applicant could not return to his duties and the Respondent had instead maintained the employment of the worker that had filled the Applicant’s job.
[16] Mr Hill stated his consideration of the Applicant’s injury was influenced by his prior experience with another employee, Cameron, who had also injured his finger. Mr Hill stated that employee received treatment for his injury, however as it was not fully healed when he returned to work, the injury became seriously infected and he later required several weeks in hospital.
[17] The Fair Work Ombudsman deed of release made between the parties was put into evidence by the Applicant. The Respondent proposed to settle matters for the provision of the wages in lieu of notice and a small remaining amount of pro rata annual leave. The Applicant indicated that he considered that his accrued long service leave was still owing. The Respondent stated that the long service leave accruals had been treated in the same way as the annual leave accruals, that is, the Respondent stated that at the Applicant’s periodical request, they had paid any such accrued amounts to him.
[18] Mr Hill stated that at the time of the dismissal, he had six employees and no other related businesses. The Respondent did not provide any specific business information supporting the need to make the Applicant’s job redundant, as referred to in the termination letter. Furthermore, the Respondent was clear that he had maintained the employment of the worker engaged in the Applicant’s absence.
[19] In according with s.396 of the Act, the Commission decides as follows:
● the application has been made within the period required in s.394(2) of the Act;
● the Applicant was a person protected from unfair dismissal;
● the Respondent has not sought to rely upon the Small Business Fair Dismissal Code (the Code) and the Commission is not satisfied that on the material before the Commission the dismissal was consistent with the Code in any event;
● the Respondent has not sought to submit that the case was genuine redundancy and on the material before the Commission it cannot be satisfied that the dismissal was a case of genuine redundancy in any event;
● The Applicant was not provided with procedural fairness in terms of the reasons for dismissal being raised with him, nor any opportunity to respond to such prior to the letter of dismissal being handed to him;
● In addition, no information providing a foundation that the termination was warranted was set out to the Applicant or provided by the Respondent.
CONSIDERATION
[20] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account the matters in s.387 of the Act:
387 Criteria for considering harshness etc.
(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
[21] The Respondent’s termination letter cited as reasons for the dismissal: a lack of work at the business; and that the injury suffered by the Applicant would “greatly impact” on his working ability. The work that the Applicant undertook related to smash repairs, and in particular spray painting. At the hearing, the Respondent stated that during all discussions with the Applicant, he had requested that the Applicant provide a medical clearance to return to work. The Applicant stated that he considered that he had obtained a full clearance to return to work (as per the medical certificate provided), and that his injury, whilst he had lost the end of his finger, had healed.
[22] The medical certificate produced by the Applicant dated 15 March 2018 states that the Applicant was unfit for duty up to 7 April 2018, however merely records that the Applicant was suffering from a “medical condition.” The parties did not have discussions about the Applicant’s ability to resume his duties. The Applicant submitted that he would have been able to continue with his duties despite the injury. The Applicant stated that the injury had healed and did not affect his predominant hand, and therefore he could have discharged his duties. The Respondent made no attempt to test his possible return to his duties. There was also no evidence provided by the Applicant that he had undertaken any work or similar duties since the injury was incurred.
[23] It is well accepted that an inability to perform the inherent requirements of a role may amount to a valid reason for dismissal. 4 In Shortland v The Smiths Snackfood Co the Full Bench considered temporary absences from the workplace in the following terms:5
“[19] The Commissioner found that a fairer procedure would have been to provide Mr Shortland with an opportunity to provide input into the decision to dismiss before that decision was made in January 2010. We agree with that conclusion. When an employee is absent because of an incapacity to perform duties, a question of timing arises. The Act precludes a termination for a temporary absence of up to 3 months. If an absence extends beyond that period, it becomes a question of whether there is likely to be a return to duties in the short or medium term. Usually updated medical advice will be important to that consideration. Indeed that medical information could have a bearing on the adequacy of the reason for termination.” 6
[Emphasis added]
[24] Section 352 of the Act provides:
“352 Temporary absence—illness or injury
An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.”
[25] Regulation 3.01 of the Fair Work Regulations 2009 states:
“3.01 Temporary absence—illness or injury
(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.
Note: Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.
(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:
(a) 24 hours after the commencement of the absence; or
(b) such longer period as is reasonable in the circumstances.
Note: The Act defines medical certificate in section 12.
(3) A prescribed kind of illness or injury exists if the employee:
(a) is required by the terms of a workplace instrument:
(i) to notify the employer of an absence from work; and
(ii) to substantiate the reason for the absence; and
(b) complies with those terms.
(4) A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.
Note: Paragraph 97(a) of the Act provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.
(5) An illness or injury is not a prescribed kind of illness or injury if:
(a) either:
(i) the employee’s absence extends for more than 3 months; or
(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and
(b) the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.
(6) In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation.”
[26] The Applicant had been dismissed during the three month period provided for in s.352 of the Act, read in conjunction with the Regulations. He was dismissed by virtue of the Respondent’s letter of 4 April 2018, and at that time the Applicant had been away from the workplace since 28 February 2018, and had a current medical certificate up to and including 7 April 2018.
[27] The issue regarding termination whilst on a temporary absence for illness or injury was raised with the Respondent. The Respondent indicated that at the time of the dismissal, the Applicant had been requested to provide a medical clearance and had not provided one.
[28] However, the Applicant had thought, based on the wording of medical certificate (that set out that he was unfit for duty until 7 April 2018), he was fit to return to work after 7 April 2018, and that therefore he had provided a medical clearance. There was no evidence that the Applicant’s ability to return to his duties (with the injured hand) was discussed or tested.
[29] In Martin v TNT Australia Pty Ltd (upheld by the majority on appeal), 7 in determining whether the employee could fulfil the inherent requirements of the role, it was stated that the assessment must take into account “the employees, the nature of the job and tasks in combination with the reasonable accommodations, for example, the lifting aids available and other manual handling procedures and practices.”8
[30] Unlike in Martin, there is no specific medical evidence before the Commission of what “reasonable accommodations” may have been able to be implemented if required, to allow the Applicant to perform in the role. It was evident that part of the Applicant’s duties involved working with chemicals. The Respondent considered that the Applicant’s injury posed a risk of infection. In contrast, the Applicant stated that his injured finger, whilst permanently compromised, had healed, and it would have been appropriate for the Respondent to have discussed reasonable accommodations (such as the wearing of gloves) to enable his return to work. No discussions or attempts were undertaken to assess the Applicant’s return to his duties.
[31] Whilst the Commission in unfair dismissal matters cannot find a breach of the general protections provisions had occurred (nor did the Applicant make this allegation), the fact that there has been a prima facie contravention of a workplace right as set out, significantly favours finding that there was no valid reason for dismissal. The Respondent held the onus of establishing a valid reason for dismissal. The evidence before the Commission has not established any of the reasons relied upon by the Respondent. Most notably, in the absence of any medical evidence from the parties as to whether the Applicant’s injury prevented him from to fulfilling the inherent requirements of his role, there was ostensibly no valid reason for dismissal. In addition, the Employer had maintained the employment of the employee (employed to cover the Applicant’s absence) in lieu of the Applicant.
(b) whether the person was notified of that reason; and
[32] The Applicant was notified of the reasons for termination at the time of his dismissal, in the termination letter he received on 4 April 2018. The Applicant stated that there was no prior communication to him of this or discussions around the injury.
[33] The Applicant stated that on the day of his termination, the Respondent had stated that he did not want to pay him any longer. Furthermore, the Applicant stated that he was not advised that if he had not produced a medical clearance by the due date, that he would be released from employment. He stated he was distressed when he received the letter of termination.
[34] The Respondent did concede that he did not have further discussions with the Applicant as to when he may be a position to return to his duties. The Respondent considered, given the injury caused the amputation of the final two segments of the finger, he would not be in a position based on that permanent disability to undertake the required duties. The Respondent stated that he was aware the Applicant had bought a house outside of Cairns, and that the dismissal would enable the Applicant to access his superannuation and move into his house.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
[35] The Applicant was not afforded an opportunity to respond to the alleged incapacity to perform his duties, but was simply presented with the termination letter.
(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
[36] On the evidence, the Respondent did not engage in any discussions relating to the injury or the dismissal, therefore the Applicant was denied the opportunity to have a support person present.
(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
[37] There was no evidence that the Applicant had been previously warned regarding his work performance. The Respondent did not raise any performance issues with the Applicant’s work ethic. The Applicant set out that he had been employed for more than 13 years with the Respondent, had been a loyal and committed employee, undertaken his duties diligently, and had a good relationship with the Respondent and the other employees.
(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
[38] The Respondent had six employees and no dedicated human resources or industrial relations expertise. The Commission has taken this into account. The Commission is of the view that whilst it is recognised that the Respondent was a small business employer and there was an absence of relevant expertise, this must however be weighed against the finding that the Applicant was denied the most fundamental procedural steps in the manner in which the dismissal was implemented and this should have been apparent to the Respondent. In circumstances of a longstanding employee, these matters cannot be overlooked. These matters have been carefully weighed and consideration given to the fact that the Respondent did not provide a procedurally fair process, noting that the reasons for the termination were not raised or explained to the Applicant prior to his dismissal.
(h) any other matters that the FWC considers relevant.
[39] The Applicant was a long-term employee of the Respondent. The nature of the injury was of a category that may well have allowed a return to work, undertaking his full duties or doing them with some reasonable accommodations.
[40] The Applicant stated, given the dismissal was implemented without any prior notification or discussion about his injury, that he no longer had any trust in the Respondent to enable continuing employment. The Applicant sought compensation but did not argue a specific amount. The Respondent is a small business employer, but did not rely on the Small Business Fair Dismissal Code, nor was there compliance with the Code.
[41] As stated, relevant discussions regarding the Applicant’s injury and his ability to perform his duties did not occur. The Applicant’s employment was terminated during the initial three months after the injury, and further the dismissal letter was prepared prior to any discussion with the Applicant. The Applicant’s job had not been made redundant and had been filled by the worker employed to cover the Applicant’s duties in his absence.
[42] It was not clarified with the Applicant that the medical certificate was insufficient, nor was the Applicant given the option to assess whether he could perform his duties, and whether modifications or work aides were required. Accordingly, the dismissal was harsh and unfair for these reasons and given his years of service without issue.
REMEDY
[43] In circumstances where a finding has been made that the termination is unfair, the appropriate remedy is considered. Division 4 of Part 3-2 of the Act provides as follows:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.
391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
[44] In terms of the remedy sought, the Applicant indicated that initially he had retained a solicitor who had completed the application and set out that he was seeking reinstatement. However at the time of the hearing, he was seeking an amount of compensation as the remedy.
[45] The Applicant had not provided a medical clearance; however he stated that it had not been made clear to him by the Respondent that the medical certificate was deficient. There had been no assessment of whether the Applicant could complete his duties with the injured finger. Given this and based on the reasons set out in the termination letter, and the lack of procedural fairness, the Applicant was not seeking reinstatement.
[46] With regard to the assessment of a remedy for unfair dismissal; the statutory prerequisites required under ss.390(1) and (2) have been met. Section 390 provides that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. As set out above, based on the reasons provided, it is determined that reinstatement is not sought or appropriate, given the manner of the termination and that there has been a loss of trust and confidence in the employment relationship.
COMPENSATION
[47] Having found that the dismissal was unfair, in part as there was no valid reason for dismissal, it is necessary to consider how long the Applicant would have remained employed with the Respondent.
[48] In the case of McCulloch v Calvary Health Care Adelaide, 9 in considering the estimated length of continuing employment in circumstances where there was no valid reason for dismissal, the Full Bench held:
“[27] We would also observe that, in our view, the evidence upon which the Commissioner relied was insufficient to sustain the inference that, but for the dismissal, the appellant would only have remained in employment for a further 8 weeks, at which time he would be summarily terminated. Implicit in the Commissioner’s finding is that the conduct which led to his dismissal (and which the Commissioner found did not constitute a valid reason for termination) would not only be repeated within a relatively short period of time but would in fact be repeated in a more serious form such as to constitute serious misconduct. While the task of determining an anticipated period of employment can be difficult, it must be done. In the context of this case it seems to us that the Commission would require cogent evidence to conclude that a person such as the appellant, who was dismissed without a valid reason, would only have worked another 8 weeks at which time he would have been summarily dismissed. The Commissioner’s s.392(2)(c) finding constitutes a significant error of fact, within the meaning of s400(2) of the Act.” 10
[Emphasis added]
[49] Given the Applicant’s length of employment, performance record with the Respondent, and other matters as set out in s.392(2), a significant order of compensation is being considered. The compensation cap of 6 months wages in the circumstances is $34,580.00. This amount is equal to the maximum amount of remuneration to which the Applicant was entitled during the 26 weeks immediately before his dismissal.
[50] However, it is also noted that relevant deductions may be made from this amount as the Applicant has provided no evidence of his attempts to mitigate his loss, with the exception of an entitlement to Newstart Allowance. For clarity there was no evidence of the Applicant undertaking any type of work (after the dismissal), particularly in the circumstances where the resumption of duties with his injury was questioned. Having found that the evidence before the Commission does not establish that the Applicant was not able to fulfil the inherent requirements of the role and therefore no impediment in applying for jobs, I am considering a substantial deduction to any award of compensation.
[51] Additionally, there is some reference in the material to the viability of the Respondent’s enterprise, which is a small business. No evidence or submissions have directly been received in relation to the effect that an award of compensation (if commensurate with the maximum amount as referred to) would have on the Respondent.
DIRECTIONS
[52] In the interests of fairness to both parties, (despite setting Directions explicitly requiring the provision of this material prior to Arbitration of the matter) it is noted that submissions have not been made addressing the above matters. That is, evidence has not been provided as to the effect on the Respondent’s business of an award of compensation as referred to, nor has the Applicant provided evidence of any work undertaken with his injured finger. Further Directions are therefore set in relation to these matters:
[53] The Applicant must within seven days of this decision, provide material in relation to s.392(2)(d) of the Act. That is, the Applicant must provide evidence of his efforts to mitigate his loss, for example evidence of applications he has made for jobs and or obtaining alternative work and any evidence of any earnings he has received since dismissal, other than Newstart Allowance.
[54] The Respondent must within seven days of this decision, provide evidence on the effect that any order of compensation may have on the viability on the Respondent’s business (s.392(2)(a)), and whether they seek for any amount to be paid in instalments (s.393), noting that this amount will otherwise likely be significant.
[55] Both parties are put on notice that in the absence of any further material being filed the Commission will proceed to determine the matter on the basis of the material presently before it. For the Respondent this may end up in a significant award of compensation being made to the Applicant, in a lump sum and payable within a relatively short period of time. For the Applicant this may result in the Commission making a significant deduction from the award of compensation.
[56] Following this seven day period, the amount of compensation will be determined on the papers based on the material provided. Should either party seek a Hearing in relation to this matter, they should make this request in writing to Chambers with their submissions.
COMMISSIONER
Appearances:
Mr N Longmore on his own behalf.
Mr G Hill with Ms P Cuda for the Respondent.
Hearing details:
2018,
Cairns:
1 August.
Printed by authority of the Commonwealth Government Printer
<PR700065>
1 Applicant’s Form F2 – Unfair dismissal application.
2 Ibid at 3.2.
3 Applicant’s submissions filed 11 July 2018 at page 2.
4 J Boag & Son Brewing Pty Ltd v Button[2010] FWAFB 4022.
5 [2011] FWAFB 2303.
6 Ibid at [19].
7 TNT Australia Pty Ltd v Martin[2017] FWCFB 1510 at [77] – [79].
8 [2017] FWC 440 at [57].
9 [2015] FWCFB 873.
10 Ibid at [27].
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