Ms Brigitte Chamia v Quikfund Australia Pty Ltd
[2012] FWA 7637
•19 SEPTEMBER 2012
[2012] FWA 7637 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Brigitte Chamia
v
Quikfund Australia Pty Ltd
(U2011/14915)
COMMISSIONER MACDONALD | SYDNEY, 19 SEPTEMBER 2012 |
Application for unfair dismissal - applicant made redundant - no consultation by employer with employee per award requirement - not a case of genuine redundancy - applicant claimed continuity of service to 1996 per associated entities of Respondent - section 311 of Fair Work Act 2009 considered - claim of continuity of service rejected for insufficient evidence - applicant’s service restricted to last company for which she worked - applicant’s dismissal unjust - order for compensation
[1] This Decision arises from an application by Ms Brigitte Chamia (the Applicant) pursuant to section 392 of the Fair Work Act 2009 (the Act) for a remedy in respect of her dismissal by Quikfund Australia Pty Ltd (the Employer/the Respondent).
[2] The unfair dismissal application was filed on 21 December 2011. The Employer did not put on an Employer’s Response to the application.
[3] Conciliation of the unfair dismissal application, by a Fair Work Australia (FWA) Conciliator took place on 30 January 2012, but did not resolve.
[4] A Form F53, Notice of Representative Commencing to Act, was filed on 9 February 2012 by the Respondent’s legal representative.
[5] The Hearing took place on 13 and 14 June 2012 before myself (Macdonald C).
[6] At the Hearing, the Applicant was represented by Mr C Indrele, Consultant. He called the Applicant as a witness.
[7] At the Hearing, the Employer was represented by Mr J Hajje, Solicitor, who called the following witnesses:
Tony Hakim - General Manager, the Respondent
Mick Hakim - Brother of Tony Hakim
Mark Slater - Financial Accountant, the Respondent
BACKGROUND
[8] The Applicant was engaged by Quikfund Australia Pty Ltd at the time that her contract of employment came to an end and which gave rise to her unfair dismissal application.
[9] The Applicant said she had been engaged by the Respondent and its prior associated entities from 1996.
[10] The Applicant held the position of National Warehouse Manager at the time of her dismissal in 2011.
[11] On 9 December 2012, the Applicant was certified unfit for work due to a spinal injury that occurred during work. She lodged a workers’ compensation claim which was accepted by the insurer for the Respondent.
[12] The Applicant was cleared for suitable duties with a five kilogram lifting limit on or around March 2011.
[13] The Applicant contacted Mr Souma (her direct Manager) and Tony Hakim (General Manager) regularly asking about when she could return to work. She was advised that there was no work available.
[14] In late October/early November 2011, the Applicant was certified fit for pre-injury duties with no restrictions. She maintained her routine of contacting Souma and Tony Hakim but was informed that there was no work available.
[15] The Applicant, throughout this time, continued to receive her fortnightly pay.
[16] The Applicant spoke with Tony Hakim on 6 December 2011 about returning to work. She was advised she would have an answer in 48 hours.
[17] On 8 December 2011, the Applicant did not receive her fortnightly pay.
[18] On 9 December, the Applicant telephoned Mark Slater, Financial Accountant, to enquire about her pay. On that same day, she received a telephone call from a George Tawaf to say her employment had ceased. In a telephone call to Mark Slater, the Applicant alleged she was told by Slater that Tony Hakim had lost it and had said he was not carrying her anymore.
[19] On 12 December 2011, the Applicant received her Employment Separation Certificate. The reason given for separation was “shortage of work”. The employment start date in the Employment Separation Certificate was given as 6 September 2010.
FINAL SUBMISSIONS
For the Applicant
[20] Mr Indrele, for the Applicant referred to the Outline of Applicant’s Submissions (Ex. 16) in addressing FWA as to the Applicant’s claim of an unfair dismissal. Mr Indrele made the following key points:
(a) The Applicant was employed by the Respondent and its associated entities since 1996.
(b) The Applicant was terminated for the reason of “shortage of work” but yet the Applicant did not receive any severance payments.
(c) The Applicant was given no opportunity to respond to the reason for her dismissal.
(d) The Applicant’s dismissal was harsh, unjust and unreasonable.
(e) The Applicant sought the remedy of compensation.
For the Respondent
[21] Mr Hajje, for the Respondent, referred to the Outline of the Respondent’s Submissions (Ex. 19) in addressing FWA as to the Applicant’s claim of an unfair dismissal. Mr Hajje made the following key points.
(a) The Applicant has not been employed by the Respondent since 1996. The Respondent was only incorporated on 25 June 2006.
(b) The Applicant was employed on 6 December 2010, as a warehouse employee.
(c) The Applicant was declared fit for return to work from 11 March 2011. She did not do so. The Applicant was allowed compassionate leave to address non-work related health issues.
(d) The Respondent ceased operating its warehouse business on 1 July 2011. Despite that, the Respondent continued to pay her wages.
(e) There was no valid reason for dismissal. The Applicant was advised in a telephone conversation by Tony Hakim that the warehouse would be shutting down and there would not be any more work.
(f) The Respondent has not undergone several name changes. The Applicant has failed to make any case that would satisfy the requirements of section 50AAA(3) of the Corporations Act 2001 (Cth).
(g) The Applicant’s employment with Prout Partners (around 2004-05) broke the Applicant’s claim that she was continuously employed by the Respondent.
Applicant in Reply
[22] Mr Indrele said that the unfairness visited upon the Applicant was that she was not given a job at the relocated warehouse. The onus was on the Respondent to demonstrate to the Applicant what other jobs were available or not available. That onus arose pursuant to Clause 9 of the Storage Services and Wholesale Award 2011. (Ex. 17) Clause 9 is titled, Consultation regarding major workplace change.
CONSIDERATION
[23] The Applicant claimed that she had been unfairly dismissed.
[24] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. Those matters are:
a) “whether the application was made within the period required in subsection 394(2);
b) whether the person was protected from unfair dismissal;
c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
d) whether the dismissal was a case of genuine redundancy.”
[25] The unfair dismissal application was made twelve (12) days after termination and was therefore made within the fourteen day time limit specified in section 394(2). This satisfies paragraph (a) of section 396 above.
[26] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised paragraph (b) as an issue for my consideration. Therefore, the Applicant is a person protected from unfair dismissal.
[27] Paragraph (c) was not raised as an issue for my consideration.
[28] Paragraph (d) was an issue for my consideration. The Employment Separation Certificate stated that the Applicant’s services had been terminated because of “shortage of work”. (Ex. 19, Annexure A) Thus, the Respondent argued that the Applicant could not maintain her unfair dismissal application because this was a case of genuine redundancy. The Applicant disputed that claim.
Case of Genuine Redundancy?
[29] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied as to four criteria:
a) “the person has been dismissed; and
b) the dismissal was harsh, unjust or unreasonable; and
c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
d) the dismissal was not a case of genuine redundancy.”
[30] Paragraph (a) of section 395 is satisfied by way of the dismissal of the Applicant.
[31] Paragraph (c) was not raised as an issue.
[32] Paragraph (b) cannot be considered until paragraph (d) has been considered: Was this a case of genuine redundancy?
[33] A genuine redundancy is defined as follows:
“S389 Meaning of genuine redundancy
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
[34] The evidence as to the Applicant’s service being terminated is the Employment Separation Certificate which gave as the reason, “shortage of work”. That was issued to her in December 2011.
[35] The Respondent said that the business it was engaged in at the time was the importer of pots and pans. This business was unsuccessful and stopped as at or around 1 July 2011. During final submissions, Mr Hajje, solicitor for the Respondent, advised that the Respondent (Quikfund Australia Pty Ltd) “got out of the business of pots and pans ... and reverted to purely their financial business.” (PN 1791-1792) Accordingly, said the Respondent, the Applicant was made redundant in December 2011.
[36] The Applicant’s representative, however, said this was not a case of genuine redundancy because: (a) the Respondent relocated its business to another warehouse; and (b) the Respondent had failed to consult with the Applicant, per an industrial instrument requirement.
[37] I reject the submission (a) described above. There was no evidence to back up this claim that the pots and pans business or the business of the Respondent relocated to another warehouse where and which business the Applicant could perform.
[38] I accept the other submission (b) described above. The industrial instrument covering the pots and pans work of the Applicant was the Storage Services and Wholesale Award 2011. (Ex. 17) Clause 9 is titled, “Consultation regarding major workplace change.”
[39] The Respondent claimed through Tony Hakim that he had told the Applicant of the forthcoming closure of the warehouse. The Applicant disputed he had telephoned her.
[40] Even if Tony Hakim had telephoned the Applicant, there was no evidence that the Respondent had carried out its obligation under Clause 9, given that a “major change” is defined to include termination of employment. There was no evidence from the Respondent that it had discussed with the Applicant the reverting to a purely financial business and whether the Applicant could have a role in that type of financial business. There was no opportunity provided to the Applicant to influence the decision-maker as to a possible role for her in the financial business.
[41] There is case law supporting this view that the Respondent’s obligation to consult is not perfunctory and the Applicant is to be given the opportunity to influence the decision-maker. Logan J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and allied Services Union of Australia v QR Limited referred to the statement of Commissioner Smith on the meaning of consultation:
“Consultation is not perfunctory advice on what is about to happen. This is common misconception. Consultation is providing the individual, or other relevant persons, with a bona fide opportunity to influence the decision maker,” [2010] FCA 591 at [40]-[45]
[42] The Respondent was obligated to consult with the Applicant, per Clause 9. The onus was on the employer to advise of its future business role in order to allow the Applicant to put forth her credentials that she could perform a role in the new business. The failure of the Respondent to consult per its obligation under Clause 9 meant that the redundancy was not a genuine redundancy, per section 389(1).
[43] Accordingly, the Applicant has satisfied section 385(d) and FWA can now consider the remainder criterion being section 384(b): the dismissal was harsh, unjust and unreasonable.
[44] In order to determine whether the Applicant’s dismissal was harsh, unjust or unreasonable, it is necessary for FWA to consider the factors set out in section 387. Those factors are:
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
b) whether the person was notified of that reason; and
c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
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
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
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
h) any other matter that FWA considers relevant.”
(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);
[45] The first factor to be considered is whether there was a valid reason for the dismissal.
[46] The reason for dismissal went to redundancy. The Respondent had not carried out its obligation, pursuant to Clause 9, to consult in a bona fide way with the Applicant.
[47] The Respondent did not put on any evidence that the Applicant could not perform a role with the Respondent in its “new” business role. It was not “new” in the sense that the Respondent was reverting to its previous role of financing.
[48] There was evidence that the Applicant had work experience in financial matters. Her witness statement deposed as to the following positions she had held: Sales Executive, Queensland State Manager, Purchase Company Administrator, National Finance & Credit Manager, Dispute Resolutions and National Warehouse Manager. (Ex. 1, para 7) When she worked at Prout Partners, “she was doing finance” work according to Mick Hakim. (PN 1496) He also said she did finance for the two companies, Link Solutions and Sonofone. (PN 1498)
[49] Given that the Applicant had financial experience which may have made her suitable for a role in the “new” financial business, and the Respondent had not shown that financial experience of hers to be unable to fit into a role in the “new” financial business (even with training provided), then I find that there was not a valid reason for the dismissal of the Applicant.
s.387(b) whether the Applicant was notified of that reason;
[50] The Applicant was notified of the reason for dismissal by mail.
s.387(c) whether the Applicant was given an opportunity to respond to any reason related to the capacity or conduct of the person;
[51] I accept that the Applicant was not provided with an opportunity to put forward evidence to support her contention that she was capable of filling a role in the “new” financial business.
s.387(d) any unreasonable refusal by the employer to allow the Applicant to have a support person present to assist at any discussions relating to dismissal;
[52] The Applicant was denied the opportunity to have a support person in that no discussion was held with her about her being made redundant.
s.387(e) if the dismissal related to unsatisfactory performance by the person - whether the Applicant had been warned about that unsatisfactory performance before the dismissal;
[53] This matter had no relevance to this case.
s.387(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;
[54] There was no evidence put before FWA on this issue.
s.387(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;
[55] There was no evidence put before FWA on this issue.
s.387(h) any other matters that FWA considers relevant.
[56] An issue for consideration, given that the Applicant seeks the remedy of compensation, is her length of service. That issue was the dominant issue in the proceedings by way of whether she had ongoing employment with the Respondent, through its alleged associated entities, going back to 1996. I will now consider that issue.
Length of Service & Associated Entities
[57] The Applicant said she had been employed by the Respondent and its associated entities since 1996. This length of service claim also impacted on her underpayment claims such as, long service leave and redundancy pay.
[58] The Applicant worked for a number of companies between 1996 and her being made redundant in 2011. The evidence was sometimes confusing as to the chronological sequence of those companies and her working for them. Set out below is my understanding from the transcript of the chronological sequence beginning from 1996:
(a) National Telecoms Group (PN 1549)
(b) Link Solutions Pty Ltd (PN 1557)
(c) Prout Partners (PN 1557)
(d) Link Solutions Pty Ltd (PN 1557)
(e) Access Telecoms (PN 1561)
(f) Sonofone (PN 1561)
(g) Access Telecoms (PN 1561)
(h) Access Telecoms bought by Clear Telecoms (Aust) Pty Ltd (PN 1561)
(i) Strathfield Group Limited (PN 1562)
(j) Quikfund Australia Pty Ltd (the Respondent) (PN 1562)
[59] I do not accept that the Applicant has had continuous service going back to 1996. There was at least one break in that continuity when she left Link Solutions Pty Ltd (b) to work at Prout Partners (c). Thus the Applicant gave evidence that she resigned from Link Solutions Pty Ltd and she was given a “large sum” payout which included “commissions owing”. (PN 787-788)
[60] The Applicant then worked at Prout Partners for some six to eight months. (PN 789) She worked there between 2004 and 2005. (PN 1267)
[61] The Applicant returned to Link Solutions Pty Ltd. She worked there around 2005 and left late in 2006. (PN 1284-1285) So, any claim about length of service can only run from 2005.
[62] The Applicant then worked for Access Telecoms - Sonofone - Access Telecoms (which was purchased by Clear Telecoms (Aust) Pty Ltd).
[63] Mr Mick Hakim gave evidence that Sonofone was “linked” to Link Solutions Pty Ltd which was “linked” to Access Telecoms. (PN 1474) Elsewhere, Mick Hakim said that Link Solutions Pty Ltd and Sonofone were “related” and “Associated” in late 2004. (PN 1446-1447) And Link Solutions Pty Ltd and Access Telecoms “were associated”. (PN 1448) Then, he said, that Clear Telecoms purchased Access Telecoms. (PN 1450)
[64] The foregoing evidence shows a connection between Link Solutions Pty Ltd - Access Telecoms - and Sonofone (and Access Telecoms was purchased by Clear Telecoms).
[65] There is evidence of directorships of Tony Hakim and Mick Hakim being connected to those four companies listed above. Thus, Mick Hakim was/is a director of Link Solutions Pty Ltd (PN 1353); Access Telecoms (PN 1354); and Sonofone (PN 1357).
[66] Tony Hakim and Mick Hakim were directors of Clear Telecoms. (PN 1383)
[67] So, the Applicant worked for Link Solutions Pty Ltd - Access Telecoms - Sonofone - Clear Telecoms and one or both of the Hakims was a director of those four named companies.
[68] The significance of the foregoing evidence is that it assists the Applicant to argue that she was a “transferring employee” pursuant to section 311 of the Act - and, in particular, section 311(3) - in respect of her employment of the named companies (d) to (h) inclusive, above.
[69] Section 311 sets out certain criteria that is to be satisfied in order for a “transfer of business” to occur and for an employee to be a “transferring employee”.
[70] Section 311(1) sets out the requirements for a “transfer of business”.
[71] Section 311(1)(a) is satisfied in that the employee stopped working for the companies (d) to (h) inclusive, listed above.
[72] Section 311(1)(b) is satisfied in that there is no evidence that the Applicant had not been employed within 3 months, in moving from one company to another (the companies (d) to (h) inclusive).
[73] Section 311(c) requires that the work the employee performs for the new employer is the same, or substantially the same, as the work the employee performed for the old employer. In that regard, there is evidence that the work the Applicant performed for Clear Telecoms and Access Telecoms was exactly the same. (PN 183 to 184) These are the companies (g) and (h) above. But there is no evidence of the actual duties the Applicant performed for the companies (d) and (f). She gave evidence that when she went back to Link Solutions Pty Ltd (d) (from Prout Partners), her previous role that she had performed there at (company (b)) was no longer available because it “had been replaced”. (PN 794)
[74] It seems then, that her work role for company (d) was not the same, or substantially the same, as for the next company in the chronological employment list, that is, of “provisioning officer” for Access Telecoms (e). (PN 795) I am not able to make a definitive finding as to the work being the same, or substantially the same, for lack of evidence.
[75] As to a connection between the work being the same, or substantially the same, for her employment with Access Telecoms (e) and thence Sonofone (f), the Applicant said she was always on the road seeing clients on a daily basis. (PN 766) This evidence concerned her work at Sonofone. She does not call this work as the work of a “provisioning officer” and because the work duties of a “provisioning officer” are not spelt out before FWA, then there is insufficient evidence to say if the work at Sonofone (f) was the same, or substantially the same, as the work of Access Telecoms (g) and Clear Telecoms (h).
[76] In conclusion of my consideration of Section 311(1)(c), there is evidence of a connection between Access Telecoms (g) and Clear Telecoms (h).
[77] In the chronological sequence of companies that the Applicant worked for, that brings FWA to consider the next and penultimate company: Strathfield Group Limited.
[78] The Applicant gave evidence as to how she came to work for Strathfield Group Limited. Whilst she was working at her place of employment (Clear Telecoms), she took some “unpaid leave” to have a hysterectomy. Whilst off work, she heard from her sister that Link Solutions Pty Ltd had gone into administration. The Applicant said she needed to know what was happening to Clear Telecoms because “Clear Telecoms worked right alongside Link Solutions in the same premises, on the same floor, just desks apart.” She telephoned her uncle, George Tawaf, who was associated with one of the companies for which she had worked and was told by him to contact Tony Hakim who told her “to go to the Silverwater address and start work there for Strathfield.” (PN 801-813)
[79] The Applicant said she was not asked to hand in her resignation from Clear Telecoms. (PN 820-821)
[80] At the Strathfield Group Ltd, Silverwater warehouse, she said she took directions from Tony Hakim or Mrs Skaiste Rodriguez. (PN 826). She started there “in January, I think, 2009”. (PN 823)
[81] Working for the Strathfield Group Ltd at the Silverwater warehouse, the Applicant said she was sent in there to pretty much learn about the warehousing and doing all their mobile phones for Strathfield Group Ltd - people would order their mobile phones over the telephone and she would dispatch mobile phones in response; as well, she sent stock out to stores and received stock back from the stores. (PN 186)
[82] In respect of my consideration of Section 311(1)(c) , I do not have the evidence to show that the work of a “provisioning officer” for Clear Telecoms is the same, or substantially the same work, as the warehouse work the applicant performed for the Strathfield Group Limited.
[83] One day, whilst carrying out the above job, she received an email advising that she was no longer employed by the Strathfield Group Limited and that she was now employed by the Respondent (Quikfund Australia Pty Ltd). (PN 189) Elsewhere she stated that the email came from Mrs Skaiste Rodriguez and the email said she was no longer getting paid by Strathfield Group Limited but would be paid by Quikfund Australia Pty Ltd. (PN 682)
[84] Working for Quikfund Australia Pty Ltd, she worked in the same warehouse in the same job as for Strathfield Group Limited. (PN 190) Tony Hakim gave evidence that the work of the Applicant continued with the Respondent in the business of pots and pans, (PN 1099-1101)
[85] The Applicant said she was doing the same job, but one was dealing with mobile phones and the other was dealing with pots and pans. What then did the Applicant mean when she said it was the same job, I rhetorically ask? I was not given the evidence as to the duties performed in respect of “the business of pots and pans”, in order that the Applicant could show a connection between the Strathfield Group Limited work the Quikfund Australia Pty Ltd work - in order to satisfy Section 311(1)(c).
[86] In summary of my consideration of Section 311(1)(c), I do not have the evidence to show the transferring work was the same or substantially the same, for all of the companies (d) to (j) inclusive.
[87] I then do not have to deal with Section 311(1)(d), given that Section 311(1)(c) has not been satisfied.
[88] Finally, that leaves FWA only dealing with the last named company (j) for the purposes of the Applicant’s unfair dismissal application, as to the length of service consideration. The Employment Separation Certificate gives the start date of her employment with the Respondent as 6 September 2010. Her end date is given as 8 December 2011. (Ex. 15, Annexure 9) This approximates fifteen months’ service.
CONCLUSION
[89] The Applicant filed an unfair dismissal application against the Respondent who argued that this was a case of genuine redundancy. I considered and rejected the Respondent’s argument because the Respondent had not complied with the requirement, under the relevant industrial instrument, to consult with the Applicant about her redundancy.
[90] The consequence of the failure to consult was to deny the Applicant the opportunity to put her credentials that she could perform a role in the new business (with or without training). The Applicant gave evidence that she had work experience in financial matters which was the type of business that the Respondent was moving back into.
[91] After deliberating on the evidence, Fair Work Australia found that there was not a valid reason for the dismissal of the Applicant. Taking into account all of the evidence and requirements of the Act, I find that the dismissal of the Applicant was unjust: Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 465.
[92] I also had to consider the Applicant’s length of service given that the Applicant claimed to have had continuous service since 1996 through companies associated with the Respondent.
[93] To that end, I considered the operation of Section 311 of the Act. I was not provided with any case law by the Applicant’s representative on the meaning of “...the same, or substantially the same (work) ...” in respect of the Section 311(1)(c) criterion to be satisfied. The Applicant did not provide a list of duties for each and every company that she claimed were “related” or “associated” with the Respondent in order to show continuity of service. I did not find that there was no such continuity, per se. I found that for lack of evidence, I could not make a finding.
[94] As far as showing a connection, for continuity purposes, that the companies she worked for were “associated entities”, this was not made out by the Applicant. The evidence of the company records search showed a connection for some companies but not for all companies, on my analysis of those records.
[95] I concluded that no connection could be shown between relevantly, the last company for which she worked (Quikfund Australia Pty Ltd) and the one beforehand (Strathfield Group Limited). If there is a connection, the evidence did not disclose it.
REMEDY
[96] Pursuant to section 392(1) of the Act, FWA now confirms that an order for payment of compensation will be made in favour of the Applicant, by the employer, in lieu of the remedy of reinstatement.
[97] Section 392(2) sets out the criteria for deciding on the quantum of compensation:
“(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 FWA considers relevant.”
[98] FWA sets out below its consideration of the above factors.
[99] The Respondent made no incapacity to pay compensation submission in support of any impact of a compensation order on the viability of the Respondent’s enterprise: s.392(2)(a).
[100] The Applicant had some fifteen months’ service: s.392.(2)(b).
[101] The next criterion for consideration is the remuneration the person (dismissed employee) would have received, or would have been likely to receive, if the person had not been dismissed: s.392(2)(c).
[102] Exhibit 11 provided information on the Applicant’s earnings. It showed a fortnightly nett earning of $1,588.72.
[103] The Applicant gave evidence that she sought to mitigate her loss of remuneration through her dismissal, but was mostly unsuccessful: s.392(2)(d). Accordingly, there was some remuneration received: s.392(2)(e).
[104] The other matter to be taken into account in considering the quantum of compensation is the Applicant’s length of service: s.392(2)(g).
[105] Having taken all of the above matters into account, as well as the circumstances of the case, and also having regard to the “fair go all round” concept (section 381(2) of the Act), FWA shall make an order for compensation for $5,000 nett A separate Order PR529381 providing for a remedy in those terms will be issued.
COMMISSIONER
Appearances:
Mr C Indrele, consultant for the Applicant
Mr J Hajje, solicitor for the Respondent
Hearing details:
2012
Sydney
June 13
Printed by authority of the Commonwealth Government Printer
<Price code {C}, PR528760>
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