Mrs Colleen Worthington v Esler Family Trust T/A Commodore Motor Inn

[2016] FWC 7773

[2016] FWC 7773

FAIR WORK COMMISSION

DECISION

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

Mrs Colleen Worthington
v
Esler Family Trust T/A Commodore Motor Inn
(U2016/64)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 4 NOVEMBER 2016

Application for relief from unfair dismissal—compensation

[1] On 16 August 2016 I issued a decision 1 in which I found that Mrs Worthington’s termination by the Respondent, Esler Family Trust T/A Commodore Motor Inn (Commodore Motor Inn), was harsh, unjust or unreasonable. Mrs Worthington was not seeking reinstatement and I was unable to come to a concluded view, based on the materials that were before me, on an appropriate remedy. I advised the parties that directions would be issued following my decision with respect to the filing of submissions addressing remedy.

[2] Mrs Worthington filed written submissions in response to those directions on 10 September 2016.

[3] On 28 September 2016, my Associate contacted Mr Esler, Owner of the Commodore Motor Inn, to ascertain whether he intended on filing any written submissions in accordance with the directions dated 29 August 2016. Mr Esler advised my Associate that ‘he would have a look at it’.

[4] No submissions were filed by the Commodore Motor Inn.

Written Submissions of Mrs Worthington

[5] Mrs Worthington submitted that she was seeking payment of notice in the amount of five weeks wages, calculated as four weeks’ notice plus an additional week for being over 45 years of age, in the amount of $3,222.45.

[6] Mrs Worthington submitted that these entitlements were outlined in the Hospitality Industry (General) Award 2010 and on the Fair Work Commission’s website.

[7] Additionally, Mrs Worthington sought reimbursement of lost wages as a result of attending conciliation on 14 March 2016, the hearing on 25 May 2016 and in anticipation of the hearing scheduled for 24 October 2016 in the amount of $133.35.

[8] Mrs Worthington submitted she had not received any income for the period from the date of her termination (29 December 2015) up to 25 January 2016 which impacted on her ability to meet financial commitments.

[9] Mrs Worthington also submitted that the Commodore Motor Inn failed to provide payment to her of accrued long service leave entitlements and had ignored all of Mrs Worthington’s correspondence in this regard. Mrs Worthington submitted that payment of the long service leave entitlement has since been made directly to her by the former owner of the business, with a small amount remaining payable by the Commodore Motor Inn which Mrs Worthington states has been forfeited.

Remedy Hearing

[10] The matter was listed for a hearing before me on 24 October 2016 which was conducted by telephone. Mrs Worthington appeared on her own behalf and Mr Esler appeared for the Commodore Motor Inn.

[11] At the commencement of the hearing, I confirmed that a written submission had been received from Mrs Worthington and that no written submission had been received from the Commodore Motor Inn. I asked the parties if they would like to make oral submissions in respect of any remedy that may be awarded to Mrs Worthington.

[12] Mrs Worthington did not wish to make any further submissions in addition to the written submission filed on 10 September 2016.

[13] Mr Esler did not wish to make any submissions in relation to remedy, save that any order for compensation which may be made by the Commission may affect the viability of the business depending on the amount ordered.

Consideration

[14] The Fair Work Act 2009 (Cth) (the Act) provides the following with respect to remedy:

“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.

[15] Mrs Worthington does not seek reinstatement as she has successfully obtained alternative employment. Further she considers the breakdown in the relationship between herself and the Commodore Motor Inn makes this untenable.

[16] Mr Esler made no submission as to reinstatement.

[17] The primary remedy for unfair dismissal is reinstatement. Where one party seeks reinstatement this should carry weight. I can only consider compensation as a remedy to the unfair dismissal if I am satisfied that reinstatement is inappropriate.

[18] I have carefully weighed the submission of Mrs Worthington and in the absence of a submission by Mr Esler, I have taken into account the evidence adduced during the hearing on the merits of the application. I am satisfied that reinstatement is not appropriate in this instance.

[19] In determining the amount of compensation to be ordered, the Act provides:

“392  Remedy—compensation

Compensation

(1)  An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

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

Misconduct reduces amount

(3)  If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4)  The amount ordered by the FWC to be paid to a person under subsection (1) must not include 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.

Compensation cap

(5)  The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a)  the amount worked out under subsection (6); and
(b)  half the amount of the high income threshold immediately before the dismissal.

(6)  The amount is the total of the following amounts:

(a)  the total amount of remuneration:

(i)  received by the person; or
(ii)  to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b)  if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[20] The criteria for deciding the amount of compensation is set out in s.392(2) of the Act.

[21] I am satisfied that any order I make will not affect the viability of the Commodore Motor Inn (s.392(2)(a)).

[22] Mrs Worthington had been employed by the Commodore Motor Inn since 14 February 2006 until her dismissal on 29 December 2015. She was therefore a long serving employee of almost 10 years (s.392(2)(b)).

[23] Mrs Worthington submitted that she regularly worked three days per week for eight hours per day and with no break. In her written submission, Mrs Worthington referred to the Hospitality Industry (General) Award 2010 and stated:

“The award states that if an employee works more than 6 hours without a meal break they are entitled to be paid an additional 50% of the hourly rate per hour or part thereof in excess of the 6 hours, and this was a regular weekly payment that I received.”

[24] Mrs Worthington submitted that her hourly rate was $23.87 per hour and that in accordance with the Award she is entitled to an additional 50% for six of the 24 hours worked per week which amounts to $71.61.

[25] Mrs Worthington earned $572.88 for the 24 hours worked per week plus the additional amount of $71.61 which amounts to $644.49 per week.

[26] Mrs Worthington did not obtain alternative employment until 25 January 2016, some four weeks after her termination. Therefore, the amount Mrs Worthington would have earned had her employment not been terminated was $2,577.96 plus superannuation (s.392(2)(c)).

[27] I am satisfied that Mrs Worthington sought to mitigate her loss by obtaining alternative employment from 25 January 2016 (s.392(2)(d)).

[28] Mrs Worthington submitted that she did not have any income from the date of her dismissal until she commenced new employment on 25 January 2016 (s.392(2)(e)).

[29] There were no submissions in relation to the amount of any income earned by Mrs Worthington during the period between the making of any order and the actual payment of compensation (s.392(f)).

[30] Mrs Worthington sought to be compensated for loss of wages for attending the Commission proceedings. Attending proceedings is a natural consequence of an application to pursue one’s claim for unfair dismissal. Respectfully, I do not consider it necessary to award compensation for loss of wages for time taken to pursue the claim.

[31] There are no other matters that I consider relevant (s.392(2)(g)).

[32] The total amount of compensation payable to Mrs Worthington as calculated above is therefore $2,577.96 plus superannuation.

[33] There is no need to reduce this amount for misconduct and I have not included any amount for shock or distress (ss.392(3) and (4)).

Conclusion

[34] There were no objections by the parties to making a decision on remedy based on the materials before me.

[35] I therefore find that the Commodore Motor Inn is required to pay Mrs Worthington the amount of $2,577.96 plus superannuation according to law. This amount should be taxed according to law and the superannuation component should be paid into a superannuation fund as nominated by Mrs Worthington.

[36] The amount must be paid within 14 days of the issuing of the Order. 2

COMMISSIONER

Appearances:

C Worthington on her own behalf

L Esler for the Esler Family Trust T/A Commodore Motor Inn

Hearing details:

2016.

Melbourne (by telephone):

October 24.

 1   Worthington v Esler Family Trust T/A Commodore Motor Inn, [2016] FWC 5740.

 2   PR587255.

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<Price code C, PR586931>