Mrs Gloria BowdenvOttrey Homes - Cobram and District Retirement Village Inc T/A Ottrey Lodge

[2012] FWA 9191

Note: An appeal pursuant to s.604 (C2012/6038) was lodged against this decision - refer to Full Bench decision dated 4 February 2013 [[2013] FWCFB 431] for result of appeal.

[2012] FWA 9191

FAIR WORK AUSTRALIA

FURTHER DECISION IN REGARD

TO REMEDY

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

Mrs Gloria Bowden
v
Ottrey Homes - Cobram & District Retirement Village Inc T/A Ottrey Lodge
(U2011/1147)

COMMISSIONER CRIBB MELBOURNE, 26 OCTOBER 2012

Application for unfair dismissal remedy - remedy.

[1] This decision concerns determination of the amount of compensation to be ordered by the Tribunal. It follows the decision 1 issued on 1 August 2012 in which the Tribunal found that Ms Bowden had been unfairly dismissed. In that decision2, the Tribunal was unable to finally determine the amount of compensation as there was insufficient material before the Tribunal at that time.

[2] Accordingly, the parties were requested 3 to reach a common view on Ms Bowden’s hourly rate of pay and the number of hours per fortnight she worked.

[3] By letter 4 of 15 August 2012, the Tribunal was advised by the respondent’s representative that the parties had agreed that:

• Ms Bowden worked 25 hours a week;



• Ms Bowden’s rate of pay, as at the date of her dismissal, was $19.43 per hour.

[4] Further, the applicant’s representative was requested to provide the Tribunal and the respondent with Ms Bowden’s updated earnings from her “other” job and from her business. 5

[5] This information was provided on 5 September 2012 6 for the period 27 November 2011 - 1 August 2012 and was:

• business - $1703.99



• ‘other job’ - $12,266.00




Total $13,969.99

[6] The information is relevant to the requirements of sections 392(2)(c), (e) and (f) and section 392(3) of the Fair Work Act 2009 (the Act):

Likely remuneration (s.392(2)(c)):

• 6 months (26 weeks) at 25 hours per week at an hourly rate of $19.43 per hour = $12,629.50

Amount earned (s.392(2)(e) and (f):

• ‘other’ job - $3,152.81 7




$12,266.00 8

• Business - $342.00 9




Total $17,464.80

[7] The amount earned by Ms Bowden whilst mitigating her loss is greater than the remuneration she would have been likely to receive if she had continued in employment for six months. 10 Therefore, on this basis, there is no need to continue the calculations nor is there a necessity to make an order for the payment of compensation by the respondent to Ms Bowden.

[8] Accordingly, no order for payment of compensation is made.

COMMISSIONER

 1   [2012] FWA 6468

 2   Ibid

 3   Ibid at paragraph 78

 4   Letter from Russell Kennedy to Fair Work Australia, dated 15 August 2012

 5   [2012] FWA 6468 at paragraph 82

 6   Email from Health Services Union dated 5 September 2012

 7   [2012] FWA 6468 at paragraph 81 and Exhibit A4

 8   Email from HSU dated 5 September 2012

 9   [2012] FWA 6468 at paragraph 81 and Transcript PN 299 - 304

 10   Ibid at paragraph 77

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