Mrs Nardia Luckman v HP Bowral Pty Ltd T/A Highlands Property

[2016] FWC 1590

[2016] FWC 1590 [Note: An appeal pursuant to s.604 (C2016/670) was lodged against this decision - refer to Full Bench decision dated 26 April 2016 [[2016] FWCFB 2423] for result of appeal.]

FAIR WORK COMMISSION

DECISION

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

Mrs Nardia Luckman
v
HP Bowral Pty Ltd T/A Highlands Property
(U2015/11305)

COMMISSIONER RIORDAN SYDNEY, 14 MARCH 2016

Application for relief from unfair dismissal.

[1] On 3 March 2016, I issued an interim decision 1 determining that Ms Luckman had been unfairly dismissed.

[2] Before issuing any Order in relation to remedy, which I proposed would be reinstatement plus an order for backpay and continuity of service, I sought the parties submissions on the appropriateness of the remedy.

[3] Mr O’Reilly advised me that he is the owner of HP Bowral Pty Ltd t/a Highlands Property (Highlands) and that the General Manager, Mr Peter Walker, has recently resigned and left the business.

[4] Ms Luckman advised me that she had been successful in gaining a new full time role from 1 February 2016. Ms Luckman submitted that, as a result of her new employment, she had moved on with her life and did not want to go back to work at Highlands. Ms Luckman also commented that her relationship with her former colleagues had become socially strained.

[5] Mr O’Reilly submitted that there were no current vacancies at Highlands and that as a relatively small business it could not simply “create a job” for Ms Luckman. Further, Mr O’Reilly suggested that the normal employer/employee trust had been destroyed.

[6] Mr O’Reilly also advised me that the parties had reached an in-principal settlement in relation to remedy. Ms Luckman advised that she had not signed any formal documentation and had returned the money that had been paid by Highlands.

[7] I note that Ms Luckman has not filed a Notice of Discontinuance.

Consideration

[8] Having taken into account the submissions of the parties I am prepared to accept, and find, that reinstatement is no longer the appropriate remedy in this matter. I consider the payment of compensation to be the appropriate remedy taking into account all of the circumstances of this case.

[9] Section 392 of the Fair Work Act, 2009 (the Act) (see interim decision) specifies the criteria that the FWC must consider in determining the appropriate level of compensation.

[10] The method for calculating compensation under s.392 of the Act was recently dealt with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge 2 (Bowden), taking into account decisions under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket3 and Ellawala v Australian Postal Corporation4. I have adopted the methodology utilised in Bowden in determining the appropriate amount of compensation.

[11] I am obliged to consider each element of s.392(2) of the Act:

a) Viability

[12] I do not believe that the Order to be made will have a detrimental effect on the viability of Highlands. I have taken this into account.

b) Length of Service

[13] Ms Luckman has been employed by Highlands and its predecessor for more than 9 years, without any disciplinary warnings or criticism. I have taken into account Ms Luckman’s exemplary service in determining that a deduction to the proposed Order is not warranted.

c) Remuneration that would have been received

[14] If Ms Luckman had not been unfairly dismissed by Highlands, I am of the view that Ms Luckman’s employment would have continued for at least another 34 weeks. I have reached this conclusion on the basis that Ms Luckman could have been subjected to a lesser form of disciplinary action following the meeting with Mr Walker on 13 August 2015.

[15] I have taken into account that Ms Luckman did not appear happy at work. Ms Luckman was clearly frustrated by the events that had occurred at Highlands over the previous 18 months which led to her being “angry and hostile” during the meeting with Mr Walker. The provision of alternate disciplinary action may have exacerbated the anxiety and frustration that Ms Luckman was experiencing. I therefore doubt that Ms Luckman’s employment would have continued in a manner that could be described as “long term”, but I doubt that Ms Luckman would have resigned without any employment opportunities.

d) Attempts to mitigate loss

[16] Ms Luckman supplied evidence that she had applied for dozens of jobs within her community and that she had initally been successful in gaining employment at a dry cleaning outlet for 1 day per week. Further, Ms Luckman was successful in gaining full time employment from 1 February 2016. I am satisfied that Ms Luckman has been actively engaged in trying to mitigate her loss and apply no discount or reduction to the Order.

e) Remuneration earned since dismissal

[17] Ms Luckman was working 1 day per week at a local dry cleaning establishment, The Trustee for Highland Dry Cleaners No 2. Ms Luckman provided payslips that proved that she was paid $3,252.82 whilst employed at the Highland Dry Cleaners. Ms Luckman provided her payslip for her new permanent role which shows that she would have been paid $6,874.50 for the six weeks since 1 February 2016. I have taken this into account.

f) Amount of Money likely to be earned between date of Order and Payment

[18] Highlands has 14 days to pay Ms Luckman the compensation for her unfair dismissal. Ms Luckman will earn an additional $2,291.50 during this period. I have taken this into account.

g) Any other matter

[19] Mr O’Reilly advised me that the parties had reached an in-principal agreement to resolve the matter. It would not be appropriate for me to take this information into consideration. Ms Luckman has not sought to discontinue the matter. I am also required to consider whether any contingencies should be considered. I have considered the option of imposing a contingency of 10%, on the basis that Ms Luckman may have simply “had enough” one day and simply resigned. I have significant doubts that such a scenario would have occurred without Ms Luckman having sourced alternate employment. I have therefore not allowed for any deduction for contingencies.
Section 392
(3) – Misconduct reduces amount

[20] I have found that Ms Luckman was not guilty of misconduct. As reasoned in the earlier decision, Ms Luckman participated in a robust discussion with the general manager of Highlands.

(4) - Shock, distress etc. disregarded

[21] The compensation amount that has been determined does not include a component for shock, distress or humiliation. I accept Ms Luckman believes that she has suffered stress and anxiety “fighting for something she believed in “, but they are not relevant considerations.

(5) - Compensation cap

[22] The maximum amount payable to Ms Luckman is 26 weeks’ pay (ie 26 x $812 = $21,112.00). This amount is significantly less than half of the high income threshold.

Conclusion

[23] In reaching my conclusion, I have been conscious of the legislative requirement to provide a “fair go all round” to both Ms Luckman and Highlands.

[24] Based on the reasons and consideration above, I Order that Highlands pay Ms Luckman $15,189.18 gross, less taxation a required by law as, compensation for her unfair dismissal within 14 days. I have adduced this amount by the following calculation;

Highlands pay $812/week x 34 weeks totalling =	$27,608.00 -
Current Job ($1,145.75/week x 6 weeks) =	$6,874.50 -
Dry Cleaning Job (Year to Date Earnings) =	$3,252.82
Amount to be earned during next 14 days =	$2,291.50
Total =	$15,189.18

[25] An Order is attached.

COMMISSIONER

 1   [2016] FWC 1250

 2   [2013] FWCFB 431

 3 (1998) 88 IR 21

 4   PrintS5109

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