Ms Carol Cook v Mudgee Law Company Pty Ltd t/a Yeates Betts Solicitors

[2019] FWC 30

[2019] FWC 30

FAIR WORK COMMISSION

DECISION

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

Ms Carol Cook
v
Mudgee Law Company Pty Ltd t/a Yeates Betts Solicitors
(U2018/5810)

DEPUTY PRESIDENT SAMS SYDNEY, 3 JANUARY 2019

Application for unfair dismissal remedy - termination of employment – Legal Secretary in regional law practice – jurisdictional objection – whether applicant’s dismissal a case of genuine redundancy – dismissal not a genuine redundancy – failure to consult – whether applicant’s dismissal was ‘harsh, unjust or unreasonable’ – reinstatement inappropriate – compensation remedy – ‘Sprigg’ applied, but varied ‘in all the circumstances of the case’ – orders made.

[1] This decision will determine an application filed by Ms Carol Cook (the ‘applicant’), pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), in which the applicant claims that the termination of her employment by Mudgee Law Company Pty Ltd t/a Yeates Betts Solicitorsc (the ‘respondent’) on 16 May 2018, was not a case of genuine redundancy. The applicant had been employed as a Legal Secretary since 15 June 2016 under the terms and conditions of the Legal Services Award 2010 (the ‘Award’). The respondent is a small legal firm (4 employees) in Mudgee, New South Wales.

[2] Section 389(1)(a) and (b) of the Act sets out the two circumstances where a redundancy of a person is not genuine and may therefore be unfair. The section reads as follows:

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.

[3] The applicant contends that neither sub-s 389(1)(a) nor (b) above were complied with and her dismissal was therefore unfair. She seeks monetary compensation as a remedy for her alleged unfair dismissal.

[4] Unsurprisingly, the respondent maintains that its financial position was such as to require the applicant’s redundancy in order to reduce labour costs. However, it was conceded that the respondent had not properly consulted with the applicant concerning her proposed redundancy, or about any measures to ameliorate its impact on her, as required by Clause 8.1 of the Award. I consider that this concession was appropriate and will be taken into account. Clause 8.1 of the Award reads:

Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.

[5] Before determining the genuine redundancy question, for a person to be protected from unfair dismissal requires findings that:

•  the person is an employee who has completed the minimum employment period, in this case, over 12 months: sub-s 382(a);

•  the modern award or an enterprise agreement covers the person: sub-s 382(b)(i); or

•  the sum of the person’s earnings did not exceed the high income threshold: sub-s 382(b)(iii).

It is accepted that each of these preconditions have been met.

[6] The next step is to determine whether the person was unfairly dismissed, pursuant to s 385 of the Act, which reads:

What is an unfair dismissal

                 A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable;
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code;
(d) the dismissal was not a case of genuine redundancy.

[7] The application was subject to a Conciliator assisted telephone conciliation on 13 July 2018, but did not result in settlement. While two jurisdictional objections were originally raised, the only jurisdictional objection subsequently pressed was the genuine redundancy issue. That matter was referred to me for hearing. In accordance with my usual practice, I listed the matter for a further conciliation on 14 September 2018. The matter remained unresolved and was listed for hearing on 12 October 2018. At the hearing, Ms E Lemmetty, Solicitor, appeared for the applicant. Mr J Kennedy, Solicitor, appeared for the respondent. Both parties were granted permission to be represented by lawyers, pursuant to s 596 of the Act.

THE EVIDENCE

The following persons provided statements and gave oral evidence in the proceeding:

● Ms Ella Rose Fox – Solicitor
● Mr Jared Lee Zak – Solicitor
● Ms Carol Cook – Applicant

For the Respondent

Ms Ella Fox

[8] Ms Fox commenced employment as a paralegal with Dott and Crossitt Solicitors (‘Dott’) in Richmond in June 2016. She was admitted as a solicitor on 24 October 2016 and worked primarily in conveyancing. Ms Fox deposed that on 30 June 2018 she commenced employment with Dott and Crossitt (‘Dott’), which had assumed the conveyancing practice of Dott. She is a 50% shareholder in Dott. Ms Fox explained that in July 2017, Dott had purchased part of Yeates Betts Solicitors (‘Yeats’) in Mudgee. The applicant was employed at that time as a Conveyancing Assistant in the Mudgee office. Ms Fox would occasionally travel to the Mudgee office to assist in the practice, where she became acquainted with the applicant. Ms Fox explained that the applicant was not working towards becoming a Licenced Conveyancer, as she was content with her then role. This meant she had to be supervised by a solicitor.

[9] Ms Fox attended a meeting with the applicant and Mr Zak on 16 May 2018 to discuss the support staff arrangements in the Mudgee office as a consequence of the resignation of one of the solicitors, Ms Catherine Williams, a few months earlier. Ms Fox recalled Mr Fox advised the applicant that he had decided to make her position redundant, and she had been chosen over the other support person, Ms Michelle Adams, because Ms Adams was soon to become a Licenced Conveyancer and had been working more hours than her. When Mr Zak offered the applicant one week’s pay, the applicant replied:

‘Is that it? Is one week all I get? O.K., I’m leaving.’

Ms Fox agreed that the applicant was visibly upset. However, she got up and walked out before Mr Zak could respond. She left the office shortly after.

[10] Ms Fox responded to the applicant’s version of the conversation in this meeting as follows:

(a) I did not hear Mr Zak refer to Ms Cook having not done herself any favours;
(b) I do not recall Mr Zak using the words ‘dismiss’ or ‘dismissing you’ during the meeting;
(c) I do not recall Ms Cook asking if she was dismissed;
(d) Ms Cook does not mention that she left the meeting whilst it was still going; and
(e) Ms Cook does not mention that she was offered one week’s pay.

[11] In cross examination, Ms Fox said that in supervising the applicant, she would sometimes review client contracts the applicant was working on, and also assist her with certain tasks. She did not know if the applicant worked on Mr Zak’s files, which included general law work. Ms Fox understood the applicant had been working in conveyancing for quite a few years.

[12] As to the meeting on 16 May 2018, Ms Fox accepted that Ms Williams actually resigned in January 2018, not shortly before the meeting. She was not aware of any other changed circumstances about staffing between January-May 2018. Ms Fox said that she was not aware that Mr Zak now acknowledged he was unaware of his obligations to consult the applicant under the Award. Ms Fox could not say whether there was a mutual agreement between Mr Zak and the applicant to forgo the Award’s consultation procedure in exchange for one week’s pay.

Mr Jared Zak

[13] Mr Zak described his current ownership arrangements with Dodd, Dott and Yeates. He is the Principal of Dodd and Dott and purchased the conveyancing and family law business of Yeates Betts in July 2017. The entity which purchased Yeates was the Mudgee Law Company Pty Ltd. The employees at the time were:

(a) Catherine Williams – Solicitor;
(b) Michelle Adams – Casual Paralegal (5 days per week);
(c) Beth Cheetham – Casual Paralegal (3 days per week); and
(d) Alison Temmesl – Casual Paralegal (1 day per week)

[14] Mr Zak said that from July through to December 2017, the applicant worked as a Paralegal four days per week, 9.00am to 3.00pm, mostly in conveyancing. Mr Zak detailed the background to Ms Williams’ resignation and its consequences. Her resignation resulted in a big loss of revenue and ‘one too many’ support staff. He decided the Mudgee office should cease family law and other work and concentrate on conveyancing — at least in the medium term. The Mudgee office also had an expensive long term lease, resulting in a significant loss of revenue. Mr Zak decided that either Ms Adams or the applicant would need to be made redundant. He settled on the applicant for the following reasons:

(a) for continuity, the business needed at least one paralegal working from 9.00am to 5.00pm, five days per week;
(b) the applicant had made it clear, on a number of occasions, that she was only available four days per week, on limited hours;
(c) Ms Adams was studying to be a Licenced Conveyancer and only had a few subjects left until she obtained the qualification. This meant she would be able to have carriage of matters herself, without supervision;
(d) he had been informed by the applicant that she had no interest in becoming a Licenced Conveyancer; and
(e) the applicant’s skill set was not as transferable as the other Paralegals. For example, she was not suitable to answer phones, and was really only able to perform the conveyancing paperwork.

[15] It was Mr Zak’s evidence that he was unaware of the Award’s requirements to consult about any redundancy, but understood he needed to discuss the changes, his decision and explore redeployment options. Mr Zak claimed that before the 16 May 2018 meeting, he decided to offer the applicant one week’s pay, in exchange for her agreeing to be made redundant immediately, rather than going through the consultation process.

[16] Mr Zak set out his version of the conversation with the applicant of 16 May 2018 as follows:

Mr Zak: ‘As you know, we have lost Catherine, and that source of revenue. At the same time we have taken on the fixed cost of the rent next door. Financially, we need to downsize. After looking at what’s best for the business and where we are going, I have decided to make your position redundant. I want to make this quick and fair. If we can do it this way, I would like to offer you a settlement offer of one week’s pay if you accept the redundancy now.’

Ms Cook: ‘So that’s it? One week’s pay?’

Mr Zak: ‘Yes.’

Ms Cook: ‘Fine.’

[17] Mr Zak said that as the applicant appeared unhappy, he decided to give her time to ‘cool off’ before discussing the next steps with her. A few days later, the applicant contacted Ms Palamara, the Office Manager, and requested the one week payment. It was paid shortly thereafter. Mr Zak understood that by accepting the one week payment, the applicant had agreed to forgo the consultation process. A positive reference was also provided to her.

[18] Mr Zak responded to the applicant’s evidence about a conversation in July 2017 in which she had raised concerns about changes to her employment when he had acquired Yeates. He denied saying, ‘Nothing is going to change. Your pay, hours and duties will all remain the same going forward.’ Mr Zak denied a similar assurance being given to the applicant in March 2018, concerning ‘rebranding’ the business. He rejected the applicant’s version of the 16 May 2018 meeting and relied on his evidence above. Mr Zak said that Mudgee Law Co Pty Ltd ceased trading on 30 June 2018 and the employment of existing employees was transferred to Dott. The intention was to shortly deregister Mudgee Law Company.

[19] In cross examination, Mr Zak said he had been in business since 2014. He currently has around 10 employees (not all full-time) engaged under the terms of the Award. He could not be sure when Ms Williams resigned, as she had expressed an intention to do so on a few occasions. However, it was certainly no later than February 2018.

[20] Mr Zak claimed that he was unaware of the Award’s specific provisions. When shown Cl 8.1, he acknowledged that the notification ‘was probably lacking.’ He accepted that the 16 May 2018 meeting was the first time he mentioned the changes to the business to the applicant. He claimed he was vaguely aware of the need for consultation and had proposed a week’s pay to dispense with the consultation obligation. He did not think to consult the Award, as it was an extremely busy time. This was the context of the one week’s pay offer. Mr Zak said he was unaware of the next steps, when the applicant left the room. However, when he heard she had inquired of the one week’s payment he believed, ‘Fantastic, we have settled the matter, so that’s it.’

[21] Mr Zak believed it was definitely the applicant who terminated their meeting on 16 May 2018. She got up and walked out. Both he and Ms Fox were left sitting there. He did not believe that the conversation had ended at that point. He denied using the word ‘dismissed’, at any time.

[22] Mr Zak rejected the belief of the applicant that the one week he had offered was in lieu of notice. As she was a casual employee, there was no requirement for her to be given notice. She knew she was a casual, as did the other employees. Nonetheless, Mr Zak agreed he could have made the position clearer. Mr Zak added that the letter of reference was also the letter terminating her employment. He conceded there was nothing in this letter which referenced the basis of the week’s pay.

For the applicant

[23] It was the applicant’s evidence that when Yeates sold part of their business to Mr Zak in July 2017, she had a conversation with him in which he told her:

‘Nothing is going to change. Your pay, hours and duties will all remain the same going forward.’

She further claimed that in March 2018, when Mr Zak ‘rebranded’ the business, he had told her:

‘I have decided to rebrand the business. We will now be trading as ‘Dott and Crossitt Solicitors.’ Everything will stay the same in regards to your roles and duties. It’s purely just a change in the marketing and branding of the business.’

[24] The applicant said she received an email from Mr Zak on 16 May 2018 requesting she attend a meeting with him later that afternoon. He did not advise of the purpose of the meeting. At the meeting at 2.45pm, the following conversation took place:

Mr Zak: ‘Our Mudgee office has had some changes and I need to cut one staff member. I only need one conveyancer going forward. Michele Adams works full time and is studying to be a licenced conveyancer, whereas you only work part time and aren’t studying, so you really haven’t done yourself any favours. I am dismissing you. That’s all I can tell you.’

Me: ‘Do you mean to say that I’m dismissed as of now?’

Mr Zak: ‘Yes.’

The applicant left the office, then packed her belongings and left the business.

[25] In a reply statement, the applicant claimed she, and the other office support, were not employed as Paralegals, but as Legal Secretaries. Ms Williams had worked primarily in family law and managed her own secretarial work. She believed Ms Williams’ resignation had no impact on the level of work generated for the conveyancing support staff.

[26] The applicant challenged much of the content of Mr Zak’s statement. She said that when Mr Zak asked her in late 2017 whether she had thought about becoming a Licenced Conveyancer, she laughed and said, ‘I’m probably looking more towards retirement stage, than study!’

[27] The applicant ‘vehemently disputed’ Mr Zac’s comments about her skills. She believed that with over 30 years’ experience, her skills were equal to, or greater than the other support staff. She had carriage of multiple conveyancing files, with little or no solicitor’s support.

[28] The applicant denied leaving the 16 May 2018 meeting before it ended. In relying on her earlier evidence, when she had told she was dismissed ‘as of now,’ she left because it was clear a decision had been made. There remained a further half hour in which she packed up and said goodbye. Mr Zak did not approach her during this time, or any time subsequently.

[29] The applicant strongly denied there was any discussion, let alone agreement of one week’s pay being in exchange for her forgoing the consultation procedure. She relied on an email exchange with the Office Manager, Ms Palamara, in which she had said:

‘I was also offered one week’s pay and would appreciate your advice on that. Also, the one day I worked (Wed) before termination – can you please arrange for this payment.’

Ms Palamara had responded on 27 May 2018 as follows:

‘Your reference is attached, the reasons for your termination are stated on the reference. Your final payment has been processed which included a one week redundancy payment.’

[30] The applicant believed that had she been consulted, her dismissal could have been ‘negated.’ She lives in a small town, is 56 years old and finding alternative employment was very limited. She would have accepted any reduction in her hours, in order to maintain some income. She identified the following three alternatives to her dismissal:

•  a workshare arrangement with Ms Adams;

•  filling Ms Temmesl’s role one day a week, while she was on maternity leave, due to be taken by her in September 2018;

•  taking on some of Ms Cheetham’s hours, who was working more than her usual hours; or

•  becoming a true casual employee by filling in when other staff were on leave. In fact, Ms Cheetham was taking 3 weeks leave in later June 2018.

[31] In a further statement dated 4 October 2018, the applicant set out her attempts to mitigate her loss, by applying for a position in each of the other four law firms in the Mudgee area and personally attending their offices. However, none of these firms had any available positions. She had also applied for five reception / administrative jobs and positions at the local school and Government offices in the area. She had been unsuccessful in all these attempts at securing alternative employment and has little hope of doing so.

[32] In a reply statement, Mr Zak deposed that:

•  there was no relevant distinction between Legal Secretaries and Paralegals;

•  he had never asked the applicant to work overtime;

•  Ms Williams did utilise support staff, particularly Ms Cheetham;

•  the applicant had only ever wanted to work 4 days a week and he had a clear impression she had no interest in becoming licenced;

•  he had received regular complaints from local real estate agents about the applicant’s lack of customer care and gruff manner over the phone;

•  he stood by his earlier evidence about the conversation during the 16 May 2018 meeting;

•  it was not feasible to keep the applicant on until Ms Temmesl’s maternity leave and, in any event, she had not been replaced during her leave; and

•  at no time, had the applicant raised the options (paragraph [30] above) in the meeting or subsequently, despite later emailing the office on a number of later occasions.

[33] Mr Zak attached a financial performance statement to his evidence which disclosed client fees of $42,249 in October 2017 and a steady decline in income from Ms Williams’ resignation, to a June 2018 income of $4,778. From a small profit in March 2018 ($8,977), the following three months recorded negative profit of -$10,541, -$16,885 and -$16,922 respectively.

[34] In cross examination, the applicant acknowledged that she had no direct knowledge of the business’s financial position, its revenue, expenses or profit. When shown the financial records provided by Mr Zak, she accepted there had been a significant reduction in client fees between February and May 2018, and since Ms Williams’ resignation. However, she did not accept that this impacted on her redundancy. She agreed she had worked 24 hours a week and had not asked Mr Zak for additional hours. When she had worked extra time, she did not seek Mr Zac’s approval for overtime. The applicant conceded she had not been looking to study because of her age and she had told Mr Zak this.

[35] The applicant acknowledged that Mr Zak had told her in the meeting of 16 May 2018 that Ms Williams’ resignation and an increase in rent, had caused a reduction in revenue. Despite not referring to the week’s pay in two of her statements, she agreed he did mention it at the time and the reasons why she was chosen for redundancy over Ms Adams.

[36] The applicant claimed that she believed the one week’s pay was notice (she had since found out she was entitled to two weeks’ notice). She had not mentioned the one week in her statements because it was not relevant to the reasons for her dismissal, or to her claim for compensation for unfair dismissal.

[37] When asked if Mr Zak had used the word ‘dismissing’ (her), she believed that ‘cutting staff,’ ‘losing your job’ and ‘redundant’ mean the same thing. Mr Zak may have said ‘redundant.’ The applicant accepted she was a casual employee and was paid as such. Nevertheless, she had regular and systematic employment. She believed the meeting had ended when she had asked, ‘Am I finished now?’ and Mr Zac replied, ‘Yes.’ She denied he had said, ‘I’m willing to settle this matter by offering you one week’s pay.’ Rather, he had only said, ‘I can give you one week’s pay.’ The applicant believed Mr Zak was lying. The applicant agreed that nowhere in her emails to Ms Palamara did she mention notice. When she inquired about the week’s pay, she was collecting the offer that had been made by Mr Zak. She strongly denied being offered a week’s pay to settle the matter.

[38] The applicant conceded that she had not raised the alternative options in her statement at the time of her dismissal. This was because she had been told she was terminated, she was ‘quite shocked’ and there was no opportunity to discuss options. In addition, it was not appropriate to raise these matters with Ms Palamara. Moreover, Mr Zak had never suggested any options to her redundancy. She reaffirmed that she would have accepted anything to retain some income; while accepting she had not sought any jobs outside Mudgee.

SUBMISSIONS

For the applicant

[39] Ms Lemmetty submitted that the crux of the applicant’s case was that her termination of employment was not a genuine redundancy, as the employer had not complied with s 389(1)(b) of the Act in respect to consultation about her redundancy. By reference to the Award provisions on redundancy and consultation, Ms Lemmetty noted that Mr Zak had not mentioned any potential changes to her employment until the meeting in which she was dismissed (16 May 2018). The meeting lasted five minutes. Ms Lemmetty added that the employer had failed to have a discussion with her as to the effect of the changes and any measures to avert or mitigate the adverse effects of those changes. Ms Lemmetty said that it was not acceptable for the applicant to ‘beg for her job back’ after being told she had been dismissed. Rather, there was a positive obligation on Mr Zak to discuss mitigation measures, before any final decision was made. The respondent had also failed to provide an outline of the changes to the applicant, ‘in writing.’ Nothing in writing was given to her until well after she had been dismissed.

[40] Ms Lemmetty submitted Mr Zak’s contention that the one week’s pay was in exchange for her forgoing the consultation process was not supported by the evidence — even from Mr Zak himself. He had never mentioned this proposition; only that he was prepared to pay her one week’s pay, which the applicant believed was notice. Ms Lemmetty observed that Mr Zak’s contention does not logically sit with his other evidence that he was not aware of the Award obligations as to consultation.

[41] Having established the applicant’s dismissal was not a genuine redundancy, and was therefore unfair, pursuant to s 385 of the Act, Ms Lemmetty turned to whether the applicant’s dismissal was ‘harsh, unjust and unreasonable,’ within the meaning of s 387 of the Act. It was submitted that the dismissal was particularly unfair given that the applicant had offered a number of options to provide her with some degree of ongoing employment. She has been out of work for 21 weeks, with little prospect of securing alternative employment, despite extensive efforts on her behalf. At $31.50 an hour for a 24 hour week, her current loss was $15,876 and ongoing.

[42] Ms Lemmetty did not accept the respondent’s reliance on UES (Int’l) Pty Ltd v Harvey (2012) FWAFB 5241 (‘UES v Harvey’), an unfair dismissal case in which two weeks compensation was awarded when consultation under the Award was not complied with. She argued that UES v Harvey did not set a maximum cap on compensation for cases involving a breach of the consultation obligations. She relied on three other cases where higher amounts of compensation were awarded in circumstances where UES (Intl) Pty Ltd v Harvey had been considered; see: Chang v Mega International Commercial Bank Co. Ltd[2014] FWC 5606 (‘Chang v Mega’); Roberton v Car Stackers International P/L[2014] FWC 2046 (‘Roberton v Car Stackers’) and Leef v Riordan Group P/L t/a Riordan Grain Services Ltd[2015] FWC 1635 (‘Leef v Riordan’).

[43] In the alternative, even if the Commission considered UES v Harvey imposed a limit on compensation in certain circumstances, that case can be distinguished from the circumstances of this case. The Full Bench in UES v Harvey held that undertaking consultation would not have altered the outcome. In this case, as the applicant had set out in her statement, there were options to minimise the impact of her dismissal, which had been ignored by the respondent. Accordingly, Ms Lemmetty submitted that the usual rules for calculating compensation (the Sprigg formula) should apply.

For the respondent

[44] Mr Kennedy put that the issue in this case was straightforward, being an admitted failure of the employer to consult with the applicant about her redundancy. There was no challenge to Mr Zak’s financial records, or his evidence that a substantial reduction in revenue required a genuine operational need to reduce labour costs. He had balanced the alternatives and determined the redundancy of the applicant, as a matter of management prerogative.

[45] Mr Kennedy referred to the conflicting evidence as to what was said in the meeting on 16 May 2018. He said the Commission would favour Mr Zak’s version of events and treat with considerable caution the applicant’s evidence, as she left critical matters out and changed her statement. It was not contested that the operational reasons why her position was redundant were explained to her. The applicant left the meeting, without raising any matters or options and did not do so in the days thereafter, even though she was emailing the respondent (Ms Palamara).

[46] Mr Kennedy submitted that the employment ended basically with a settlement by mutual agreement. The applicant had agreed Mr Zak did not use the word ‘dismissing.’ As a casual employee, there was no requirement to notice and the applicant did not describe it as ‘notice’ at the time. It was a later ‘invention,’ without her ever being entitled to notice.

[47] In the alternative, Mr Kennedy relied on Maswan v Escada [2011] FWA 4239 (‘Maswan’). Even if there had been little, or no consultation, it was highly unlikely to have negated the operational reasons for the dismissal. As to the options proposed by the applicant to mitigate her dismissal, Mr Kennedy observed that these options were only raised by her six months after her dismissal. Moreover, there was no evidence that any of these options were feasible, or would have even been acceptable to her at the time. One suggestion was that she lose all her hours and be ‘on call’ or reduced to work one day a week. It is doubtful she would have accepted these options. Mr Kennedy said these belated options are nothing but self-serving propositions.

[48] Rather, the applicant accepted one week’s pay and left the 16 May 2018 meeting. Even if UES v Harvey is applied, she would be entitled to no compensation, or at the most, one week. Mr Kennedy rejected the submission that UES v Harvey can be distinguished to this case. He analysed each of the authorities relied on by Ms Lemmetty and noted the following distinguishing factors:

•  In Chang v Mega, the employee had worked for a large international bank for 18 years. There had been no meeting at all with the employee and it was found that a restructuring proposal should have been put to an internal committee. It was determined that conducted properly, consultation would have taken at least six weeks, with a further four weeks to advise the regulator of governance changes.

•  In Roberton v Car Stackers, the process of selection would have taken a month.

•  In Leef v Riordan, the employee had raised issues with his wages and OH&S matters. The employee was forced to take annual leave of six weeks, purportedly to allow the employee time to consider his options. It was found that this period should have been used for consultation and the employee would have remained in employment for that period of six weeks.

[49] Finally, Mr Kennedy submitted that none of the options proposed by the applicant would have continued beyond 30 June 2018 when the Company ceased trading and was awaiting deregistration. There is no capacity to pay any compensation order.

[50] In reply, Ms Lemmetty submitted this was not a case involving the ‘disappearance’ of the employer. The business was still in place in the same location, with the same staff. It just changed from one business entity to another.

CONSIDERATION

Was there an agreement to settle the matter for one week’s pay?

[51] Mr Kennedy submitted that Mr Zak offered the applicant a week’s pay to forgo the consultation provisions in the Award and accept her redundancy. It was said that immediately after she asked if this was all she would get, she got up and left the meeting, effectively accepting this outcome. There is no dispute the applicant was visibly upset at the time, and the meeting was brief. Mr Kennedy further submitted that the applicant’s conduct, by engaging with Ms Palamara a few days later about the week’s pay, effectively confirmed her agreement to Mr Zak’s settlement offer.

[52] The applicant strongly denied there was any agreement about the week’s pay being in exchange for her consent to waive the consultation provisions in the Award. She had understood that the week’s pay was for notice not given. Moreover, she had never agreed to anything with Mr Zak then, or subsequently.

[53] I would firstly observe that Mr Kennedy did not labour this submission. This was a wise move. In my view, there was no evidence, even from Mr Zak, that he had even mentioned that the one week’s pay was in exchange for forgoing the consultation obligations in the Award; see: Mr Zak’s version of the conversation at paragraph [16] above. The highest the evidence got was that Mr Zak assumed that the applicant would know that as a casual employee, she was not entitled to notice, so the week’s pay could only have meant it was to settle the matter. This is such a flimsy, unrealistic connection as to be unsustainable. It is a ‘very long bow to draw’.

[54] In my view, it was reasonable for the applicant to believe that the week’s pay had something to do with notice - after all, she had received none. Notwithstanding that the applicant was a casual, it was not unreasonable, given the applicant was a regular and systematic casual employee, for her to believe that should her employment be terminated by the Company, it would provide her some notice. .

[55] Moreover, while I found Mr Zak to be a reliable witness overall, who gave evidence frankly and often against interest, in this respect his evidence is somewhat ‘shaky’. I agree with Ms Lemmetty when she observed that how is it logically possible that a person who claimed little knowledge of their Award obligations in respect to consultation, simultaneously claims that he was offering a payment in lieu of an Award obligation he did not know he had! In any event, I am satisfied there was no settlement or agreement of a kind identified in Masters v Cameron (1954) 91 CLR 353, or any agreement between the parties that the week’s pay was in exchange for the applicant forgoing her Award rights to be properly consulted about her redundancy; see also: Singh v Sydney Trains[2017] FWC 4015. We can conveniently move on.

Was the termination of employment a genuine redundancy?

[56] There does not appear to be any challenge to the respondent’s claim that the applicant’s dismissal was a result of the respondent’s operational needs to reduce its costs, following a significant loss of revenue. So much so was evident from Mr Zak’s financial records and his evidence as to the reasons why he determined one support staff would need to be made redundant. I am satisfied that the applicant’s redundancy was genuine in that context.

[57] Regrettably, when an employer is faced with making a difficult choice of retaining one or more employees over others, the employer will invariably look to the employee/s who are likely to prove the most valuable to the ongoing survival of the business. Some employers engaged in large scale redundancies, undertake a formal selection process involving objective and subjective criteria, sometimes with appeal rights available where an employee believes their selection (or non-selection) is unfair or biased. Indeed, it is not unusual for highly qualified and eminently employable employees to protest their non-selection for redundancy, where a significant redundancy payout is available and such employees can simply ‘walk into’ a new job almost immediately. This is just ‘human nature,’ but it is not consistent with the fundamental purpose of redundancy pay to assist in ameliorating the detrimental impact of a termination of employment through no fault of the employee and the loss of non-transferable credits; see: Shop, Distributive and Allied Employees’ Association and Others v Countdown Stores and Others, (1983) 7 IR 273 per Fisher P.

[58] An employee’s redundancy does not usually mean their dismissal is any commentary on their conduct or performance. In this case, Mr Zak unashamedly set out the reasons why he chose the applicant over Ms Adams. It is perfectly understandable why the applicant feels aggrieved by his decision and protested his reasons for her selection. However, as the Explanatory Memorandum to the Fair Work Bill 2008 makes clear, ‘Whether a dismissal is a genuine redundancy does not go to the process for selecting individual employees for redundancy.’

[59] In any event, I am satisfied that Mr Zaks’ unenviable choice, was not motivated by any mala fide intent. He had a reasonable basis to conclude that retaining Ms Adams represented a stronger long term prospect for an increase in revenue and a better bet for the business’s future. Her hours were full time and she was soon to become a Licenced Conveyancer. The applicant (although she described it as a flippant comment), expressed no desire to study, or become licenced. I hasten to add that this is no reflection on the applicant’s performance or conduct. I have no doubt she is a very competent Legal Secretary, with many years of experience.

[60] Having being satisfied that s 389(1)(a) of the Act has been complied with, I turn to the consultation leg under s 389(1)(b). There is little for me to resolve in this context, as Mr Kennedy properly conceded there was a failure to consult in accordance with the employer’s Award obligations. Mr Zak’s honest and open evidence confirmed this to be the case. Accordingly, I find that the applicant’s dismissal on 16 May 2018, was not a genuine redundancy, in accordance with s 389(1)(b) of the Act.

Was the applicant’s dismissal unfair?

[61] I turn then to consider the matters the Commission is required to take into account under s 387 of the Act, as to whether the applicant’s dismissal was ‘harsh, unjust or unreasonable,’ and therefore unfair.

[62] The section is set out as follows:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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 matters that the FWC considers relevant.

[63] The meaning of the expression ‘harsh, unjust or unreasonable’, in an industrial context, is often cited by reference to the well-known passage in Byrne v Australian Airlines Ltd [1995] HCA 24 at paragraph [128]:

‘It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’

387(a) Was there a valid reason for the applicant’s dismissal?

[64] The words of subsection (a) of s 387 of the Act plainly disclose that a valid reason must relate to ‘the persons capacity or conduct’. In the ordinary course, a dismissal for reasons of redundancy does not involve any reasons related to an employee’s capacity or conduct; often described as a dismissal brought about through no fault of the employee concerned. This is the view of the respondent and it must be accepted as the correct position.

[65] In UES v Harvey, a case in which the essential facts are not dissimilar to those here, a Full Bench of the Commission, by majority, said at paragraphs [40]–[42]:

‘On the evidence, therefore, we consider Mr Harvey’s dismissal was not a case of genuine redundancy within the meaning of s.389. However, this is only because UES did not consult with Mr Harvey about the redundancy in accordance with its obligation in the modern award that applied to Mr Harvey’s employment.

As to whether the dismissal of Mr Harvey was harsh, unjust or unreasonable, we turn to the matters in s.387 of the FW Act.

Valid reason (s.387(a))

As we have already indicated, in our view the reasons for the dismissal of Mr Harvey by UES were not related to his capacity or conduct (including its effect on the safety and welfare of other employees). Accordingly, there cannot have been and was not a valid reason for his dismissal related to his capacity or conduct (including its effect on the safety and welfare of other employees). In the circumstances of this case we regard it as a neutral matter with respect to our consideration as to whether Mr Harvey’s dismissal was harsh, unjust or unreasonable.’

[66] In Byrne v Tyco Fire & Security [2016] FWC 886 (‘Byrne v Tyco’) O’Callaghan SDP said at [32]:

‘One final comment is appropriate in these circumstances. In a number of respects, Mr Byrne’s circumstances may be regarded as analogous with those considered in Harvey v UES Int’l in that, if the termination of his employment is ultimately regarded as unfair because of a failing in the consultation process, the Fair Work Commission may not have the capacity to review why Mr Byrne was selected for redundancy and the amount of compensation may be limited to the length of time associated with complying with the requisite consultative obligations. A copy of that Full Bench decision will be provided to the parties as it may represent useful guidance if the parties seek to resolve this matter through a negotiated settlement.’

[67] Accordingly, I find that s 387(a) is a neutral matter in this case. Similarly, as subssections (b),(c),(d) and (e) of section 387 are predicated on a valid reason being found under subssection (a), no findings, one way or another, can be made under these subsections. Consistent with UES v Harvey, I consider these matters to be neutral in this case. This leaves subsections (f),(g) and (h).

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; and 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.

[68] There is no doubt the respondent is a small business/enterprise. I am satisfied that the size of the business and Mr Zak’s lack of HR expertise (notwithstanding he is a lawyer) contributed to his failure to consult with the applicant about her redundancy. Nevertheless, I regard these matters as neutral factors in this case.

387(h) any other matters that the FWC considers relevant

[69] At the risk of repetition, the applicant’s dismissal was for reasons of redundancy in that Mr Zak no longer required her job to be performed by anyone because of changes in the operational requirements of the respondent.

[70] Returning to other relevant matters in this case, I am satisfied that by failing to consult with the applicant as to her redundancy, this factor contributes to the ‘unreasonableness’ of her dismissal. I would add that in my view, it was reasonable, in all the circumstances, not to redeploy the applicant to any other position in the firm. The question of whether it was reasonable to redeploy the applicant is not determined by a finding that other employees may have, and did perform some of the duties associated with the role she had previously performed. Ultimately, this question is answered by the fact that the role the applicant was employed as, was no longer required to be performed by anyone. Ultimately, the applicant did not seriously challenge this proposition.

[71] Three propositions arising from the relevant authorities make manifestly clear that:

•  An employee may still be redundant when aspects or parts of the employee’s duties are still performed by other employees;

•  The test is whether the job survives a restructure of the enterprise, not whether some of the duties have survived and continue to be performed by others, or others who have been employed to perform those duties;

•  It is the employee’s role or job that is no longer required to be performed, not necessarily their duties, which is relevant; see: Dibb v Commissioner of Taxation [2004] FCAFC 126 and Ulan Coal Mines Limited v Henry John Howarth and others [2010] FWAFB 3488.

[72] That said, it is necessary to address each of the applicant’s ‘other relevant matters.’

[73] Much store was placed in the applicant’s case on the various options in lieu of redundancy she identified in her statement for these proceedings; see: paragraph [30] above. It was argued that the perfunctory manner in which she was dismissed on 16 May 2018 and Mr Zak’s failure to follow up with her as to alternative options to redundancy, exacerbated the ‘unreasonableness’ and unfairness of her dismissal.

[74] It is necessary for me to make the following observations:

(a) These options were only proposed during the preparation of this case; that is, many months after the applicant’s dismissal. Alternative options to redundancy must be raised at, or around the time of an employee’s dismissal. It is unhelpful to speculate on the viability of alternative options, months after the dismissal when an employer’s working arrangements have been settled for some time. This proposition was made clear in Ulan Coal Mines Limited v Honeysett[2010] FWAFB 7578 where a Full Bench of Fair Work Australia (as the Commission was then styled) said at [28]:

‘The question posed by s 389(2), whether redeployment would have been reasonable, is to be applied at the time of the dismissal. If an employee dismissed for redundancy obtains employment within an associated entity of the employer some time after the termination, that fact may be relevant in deciding whether redeployment would have been reasonable. But it is not determinative. The question remains whether redeployment within the employer’s enterprise or the enterprise of an associated entity would have been reasonable at the time of dismissal. In answering that question a number of matters are capable of being relevant. They include the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job in relation to the employee’s residence and the remuneration which is offered’ (my emphasis).

(b) The evidence was that the applicant was communicating, via email, with Ms Palamara, the Office Manager, in the week or so, after the 16 May 2018. There is no mention in any of these inquiries, or at any subsequent time, of options proposed by the applicant to maintain some level of income. While I accept that it was not up to the applicant, as Ms Lemmetty put to, ‘beg for her job,’ Mr Zak should have asked her if she had any suggestions. However, it is now too ‘late in the day’ to raise the options as a means of demonstrating the unfairness of her dismissal.

(c) In any event, Mr Zak has properly reviewed these proposals and discounted all of them. Some are dependent on other employees taking leave; one option involved working one day a week, another the applicant being simply ‘on call’, as needed. While the applicant said she would have taken anything, including it would seem being ‘on call’ and possibly having no income, it is difficult to speculate whether the applicant would have seriously proposed such options at the time. That said, in the context of what Mr Zak was attempting to do to maintain his business and increase revenue, I do not consider that these options were reasonable in the circumstances.

[75] For the above reasons, I find the applicant’s dismissal on 16 May 2018, was ‘unreasonable,’ pursuant to the considerations under s 387(h) of the Act.

REMEDY

[76] I turn now to the question of remedy. Section 390 of the Act requires the Commission to make a finding that reinstatement of an unfairly dismissed employee would be inappropriate, before considering a compensatory remedy.

[77] The section is set out below:

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.

[78] The applicant does not seek reinstatement and given the disdain she has for Mr Zak, as evident in her submissions and cross examination, it is clear that the employment relationship is not able to be restored. It follows that reinstatement would be inappropriate. This finding leads to compensation considerations. Section 392(2) of the Act requires the Commission, when making an order for compensation, to take account of ‘all of the circumstances of the case’, including the following mandatory considerations:

(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.

[79] Subsections 3-6 set out some other matters to be considered when determining a compensatory remedy. These sections are as follows:

(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.
Note: subsection 392(5) indexed to $68,350 from 1 July 2015

(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.

[80] The general approach to be adopted by the Commission in calculating compensation in a particular case, is set out in the seminal case of Sprigg and reaffirmed in Ellawala v Australian Postal Corporation [Print S5109] and Haigh v Bradken Resources Pty Ltd t/as Bradken[2014] FWCFB 236 (‘Haigh’). Of particular relevance in this case are the following passages from Sprigg at page 29:

In assessing the amount of compensation to be awarded the following approach has been adopted by the Court:

STEP 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment.

STEP 2: Deduct moneys earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation awarded.

STEP 3: The remaining amount of compensation is discounted for contingencies.

STEP 4: The impact of taxation is calculated to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.

STEP 5: The legislative cap on compensation is applied.

[81] Although Ms Lemmetty sought to distinguish UES v Harvey from this case, I consider the underlying principle, that had the employer consulted the applicant about her redundancy in accordance with the relevant modern Award, and in the absence of any evidence that such consultation would have produced a different result, her dismissal would have been a genuine redundancy within the meaning of s 389(1)(a) of the Act.

[82] As earlier stated, as I do not accept that any of the options subsequently proposed by the applicant were reasonable at the time, it leaves the question of the time it would have taken to appropriately consult with her.

[83] I agree with Ms Lemmetty that UES v Harvey does not set a standard rule that one or two weeks is the only amount of compensation the Commission would order in recognition of an employer’s failure to consult with a redundant employee(s). On the other hand, each of the cases Ms Lemmetty referred to demonstrate particular discrete facts and circumstances which produced a higher compensation figure. These cases merely demonstrate the point that there is no ‘hard and fast’ rule in this respect.

[84] Moreover, there still remains the overarching consideration when determining a compensation order for unfair dismissal, that the Commission’s task is to ensure that the level of compensation an amount that the Member considers appropriate, having regard to all the circumstances of the case. In this respect, I refer to what the Full Bench of the Australian Industrial Relations Commission (‘AIRC’) said in Arthur Smith and Brett Kimball v Moore Paragon Australia Ltd - PR942856 [2004] AIRC 57 (‘Smith v Moore Paragon’) as to the difficulties which sometimes arise when the application of the Sprigg formula produces a clearly excessive or clearly inadequate result. At paragraph [32] the Full Bench said:

‘It seems to us that the amounts arrived at by the application of the guidelines in Sprigg in the present matter are on their face manifestly inadequate for employees with the length of service of the Appellants, the circumstances of their dismissal and their poor prospects for future employment. This causes us to sound a warning in relation to the application of Sprigg. The guidelines laid down in Sprigg and refined in Ellawala v Australian Postal Commission are clearly designed to serve the proper and desirable purpose of fostering uniformity and consistency in decision-making by individual members of the Commission when assessing compensation pursuant to s.170CH(6). However, those guidelines are not a substitute for the words of the Act. By virtue of s.170CH(2), any remedy ordered by the Commission must be a remedy that the Commission considers "appropriate" having regard to all the circumstances of the case including the matters set out in s.170CH(2). Section 170CH(6) confers a general discretion "if the Commission considers it appropriate in all the circumstances of the case" to "make an order requiring the employer to pay the employee an amount ordered by Commission in lieu of reinstatement" subject to the Commission having regard "to all the circumstances of the case including" the matters listed in s.170CH(7) - the same list of matters set out in s.170CH(2) - and subject also to the `cap' provided for in s.170CH(8) and (9). If an application of the guidelines in Sprigg yields an amount which appears either clearly excessive or clearly inadequate, then the member should reassess any assumptions or intermediate conclusions made or reached in applying the guidelines so as to ensure that the level of compensation is in an amount that the member considers appropriate having regard "to all the circumstances of the case" including the matters listed in s.170CH(7) and subject to the `cap' provided for in s.170CH(8) and (9). In this context it should be borne in mind that the result yielded by an application of the Sprigg guidelines may vary greatly depending upon particular findings in relation to the various steps including, in particular, step one, which necessarily involves assessments as to future events that will often be problematic’. (my emphasis)

[85] More recently, a senior Full Bench in Hanson Construction Materials Pty Ltd v Darren Pericich [2018] FWCFB 5960 echoed the decision in Smith v Moore Paragon’ when it said at paragraph [39]:

‘The strict application of the approach set out in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg), and endorsed in subsequent decisions, would yield an order that Mr Pericich be paid compensation of 1 weeks’ pay. Sprigg is a useful servant, but is not to be applied in a rigid determinative manner. In deciding the amount of a compensation order the Act directs that the Commission ‘must take into account all of the circumstances of the case’ including the particular matters set out at s.392(2)(a) to (g)’. (my emphasis)

[86] I return to the discrete matters to be taken into account in s 392(2) of the Act and make findings on each one.

(a) Effect on the viability of the enterprise

Given the compensation order I intend to make, I am confident that the order will have little, if any impact on the viability of Mr Zak’s business.

(b) Length of service

The applicant did not have a lengthy period of service with the respondent (or its predecessor entities) of 23 months. This is a neutral factor in this case.

(c) The remuneration received, or would have been likely to receive, if the person had not been dismissed

Given the applicant was made redundant for genuine operational reasons on 16 May 2018, I am satisfied that the applicant would not have remained employed beyond a further two weeks, while the process of consultation was properly undertaken; see UES v Harvey, Byrne v Tyco and Maswan. The applicant received no notice of her dismissal and while this was technically correct, as she was a casual employee, I consider, in the circumstances, that it was understandable for her to consider that the one week’s pay Mr Zak offered her, was a payment in lieu of notice. This is a neutral factor, but it will be deducted from the final compensation order I consider to be appropriate in all the circumstances.

(d) The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal.

The applicant’s evidence was that she had made numerous attempts to secure alternative employment, including outside and beyond her experience as a Legal Secretary. This factor weighs in favour of the applicant.

(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.

There is no evidence of any income earned by the applicant since her dismissal. No deduction is made on that score.

(a) 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

This is a neutral factor.

(b) Any other matter that the FWC considers relevant

Other relevant matters have been extensively canvassed earlier in this decision. However, as earlier indicated, I am satisfied that the lack of notice and failure to consult the applicant rendered her dismissal ‘unreasonable.’ I have also taken into account that the applicant is 57 years old and lives in a regional town. She has made numerous unsuccessful attempts to secure employment in her field of long experience.

[87] As to s 392(3), there was no misconduct of the applicant and obviously no deduction is made on that score. The amount of compensation does not include any component by way of shock, distress, humiliation or other analogous hurt: subsection 392(4).

[88] For the purposes of subsections (5) and (6) of s 392, the amount of compensation order does not exceed either the high income threshold or the amount of remuneration earned by the applicant in the 26 weeks prior to her dismissal.

[89] In applying the Sprigg methodology, the following outcome is obtained:

•  2 weeks’ pay x ($31.50 x 24 hours a week x 2) = $1512.00

•  Less one week paid = $756.00.

•  Total = $756.00

CONCLUSION

[90] In considering all of the matters under s 392 of the Act, but particularly:

•  the unconvincing evidence of Mr Zac as to the characterisation of the offer of one week’s pay on 16 May 2018; and

•  the matters I have taken into account under s 392(2)(g); see paragraph [84] above, I determine that the appropriate level of compensation in this case is an amount of compensation of 3 weeks’ pay, being $2,268.00.

Taxation treatment of these amounts is a matter for the parties. The amount is to be paid to the applicant, within 14 days of today’s date. This matter is now concluded with the Commission being of the view, that the outcome represents a ‘fair go all round’ as mandated by s 381(2) of the Act.

Orders giving effect to my findings are published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

E Lemmetty for the applicant.

J Kennedy for the respondent.

Hearing details:

2018:

Sydney:

October 12.

Printed by authority of the Commonwealth Government Printer

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