Ms Deanna Giblin v Coogee Legion Ex-Service Club Ltd
[2023] FWC 3178
•1 DECEMBER 2023
| [2023] FWC 3178 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ms Deanna Giblin
v
Coogee Legion Ex-Service Club Ltd
(U2023/4600)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 1 DECEMBER 2023 |
Application for an unfair dismissal remedy – compensation
On 24 October 2023 I issued a decision[1] in this matter in which I found that there was no valid reason for Ms Deanna Giblin’s dismissal and that the dismissal was harsh, unjust and reasonable having regard to all of the matters in s.387 of the Fair Work Act 2009 (the FWAct). I considered that an order for payment of compensation is appropriate and that I would determine that amount after a further hearing.
I issued directions for the filing and serving of material in relation to compensation on 24 October 2023. Ms Giblin filed evidence submissions on 1 November 2023. Coogee Legion Ex-Service Club Ltd (the Club) filed submissions on 9 November 2023. The matter was listed for hearing on 13 November 2023.
Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to Ms Giblin in lieu of reinstatement. I consider all the circumstances of the case below.
Effect of the order on the viability of the Club’s enterprise
There is no dispute and I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise.
Length of Ms Giblin’s service
Ms Giblin’s length of service was eighteen months.
I consider that Ms Giblin’s length of service does not support reducing or increasing the amount of compensation ordered.
Remuneration that Ms Giblin would have received, or would have been likely to receive, if Ms Giblin had not been dismissed
As stated by a majority of the Full Court of the Federal Court:
[i]n determining the remuneration that Ms Giblin would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.[2]
Submissions
Ms Giblin provided payslips which showed that in the 6-month period prior to the dismissal she had earned $27,414.69 gross, which is a gross average weekly amount of $1,054.41.
The Club submitted that it is difficult to ascertain how long Ms Giblin would have been employed in her casual position at the Club. Ms Giblin was working at the Club while studying for a career in nursing. Ms Giblin has submitted recent job applications for roles within the nursing sector, which likely indicates that she wishes to pursue a career in nursing and not hospitality.
In response to questions during the hearing, Ms Giblin stated that she expected to finish her nursing studies in about November 2024 and that she expected to be employed by the Club until she obtained employment as a nurse.
Findings
Based upon the evidence at the hearing on 11 August 2023, I believe that if she had not been dismissed, it is unlikely that there would have been a termination of Ms Giblin’s employment prior to Ms Giblin finishing her nursing studies in November 2024. This is because there was no evidence or suggestion by the Club that there were any performance or conduct issues in relation to Ms Giblin, apart from those which led to her dismissal.
I find that if she had not been dismissed, Ms Giblin’s employment with the Club would have continued until she finished her studies and gained employment as a nurse. Her income would have been comparable to the average weekly amount that she earned prior to the dismissal, adjusted to take into account the Annual Wage Review 2022-23 increase of 5.75% from 1 July 2023.[3]
Based upon Ms Giblin’s evidence, I find that the likely date she would have secured employment as a nurse is 18 November 2024, which is a period of approximately 80 weeks from the date of dismissal. I have calculated that Ms Giblin would have received, or would have been likely to receive, the gross sum of $88,718.16 plus superannuation during this period. I have calculated this based on Ms Giblin receiving 8 weeks’ pay from 5 May 2023 to 30 June 2023 at the average weekly rate of $1,054.41 ($8,435.28), plus 72 weeks’ pay at the average weekly rate of $1,115.04[4] for the period from 1 July 2023 to 18 November 2024 ($80,282.88).
Efforts of Ms Giblin to mitigate the loss suffered by Ms Giblin because of the dismissal
Ms Giblin must provide evidence that she has taken reasonable steps to minimise the impact of the dismissal.[5] What is reasonable depends on the circumstances of the case.[6]
Submissions
Ms Giblin
The main area of disagreement between the parties was whether Ms Giblin had taken reasonable steps to mitigate her loss. Ms Giblin submitted that she had taken reasonable steps to minimise the impact of the dismissal by applying for several jobs since she was dismissed. Ms Giblin applied for jobs either online, or in person by producing a hard copy of her resume. Ms Giblin did not keep records of all of the roles she applied for, but produced records to the Commission in relation to applications for seven positions made during the period from 26 May 2023 and 6 October 2023. These records included an email dated 26 May 2023 from Bob Tate, Owner/Operator of the Glasshouse Hotel advising that he could not proceed with offering Ms Giblin employment because the employee who was leaving decided to stay at the Glasshouse Hotel. In my decision of 24 October 2023, I noted that the Club provided evidence that it told the Glasshouse Hotel on 25 May 2023 that it would not employ Ms Giblin again. I also noted that Ms Giblin had submitted that she was hindered from obtaining employment because the Club had provided an unfavourable reference to the Coogee Diggers Club, which the Club denied.[7]
In her evidence at the hearing on 11 August 2023, Ms Giblin said that the hospitality jobs that she had applied for at the Glasshouse Hotel and the Coogee Diggers both had hours that suited Ms Giblin’s university commitments.[8]
After learning that she had been unsuccessful in seeking alternative employment with the Coogee Diggers Club or the Glasshouse Hotel, Ms Giblin removed any reference to working at the Club from her resume, where she gained significant experience, including working in management. She believes she will have less opportunity to apply for any future management positions in the hospitality industry if she is unable to rely on her management experience gained at the Club.
From 26 June 2023 to 17 September 2023, Ms Giblin obtained employment with a Golf Club on a casual basis. In her written submissions, Ms Giblin said that she commenced employment at the Golf Club on 11 July 2023 but corrected this at the hearing to 26 June 2023. Ms Giblin explained that she had used her payslips to work out the commencement date and had referred to the wrong payslip. This job was unsustainable for Ms Giblin financially as the Golf Club was looking for a part-time employee which Ms Giblin was not advised of until after she commenced working at the Golf Club. Ms Giblin was unable to commit to part-time hours with her nursing studies. Ms Giblin also had university placements commencing on 18 September 2023 so was unable to work shifts at the same time due to the Golf Clubs’ short hours of business.
On 11 September 2023, Ms Giblin was successful in gaining employment at a Hotel. Ms Giblin continues to search and apply for jobs that can provide more shift stability as she is currently rostered to work a maximum of 3 shifts a week which is significantly impacting her financially as she was working many more shifts a week at the Club. During the hearing, Ms Giblin said she only works 3 shifts per week because that is what is currently available, given that the Hotel is obliged to give preference to permanent employees when allocating shifts. Ms Giblin works more than 3 shifts per week if these are offered to her.
The Club
The Club submitted that Ms Giblin was dishonest and gave untruthful evidence at hearing on 11 August 2023, and in her evidence filed prior to and after the hearing. Ms Giblin filed her ‘Outline of Argument’ on 17 July 2023 as part of her evidence in which she stated, ‘I haven’t been able to find suitable employment since as I have found out from places that the legion club has been giving me bad references.’ The Commission’s decision[9] at [164] states that at the time of the hearing, Ms Giblin had not obtained alternative employment. In cross examination, Ms Giblin said that she had not misled the Commission as it was correct that she had not obtained employment that was suitable.
The Club submits that it is unclear whether the earnings that Ms Giblin has disclosed are the maximum which would have been available to her. There is an inevitable flexibility in casual work, and the hours offered or requested, and accepted, may vary according to circumstances. Ms Giblin has been sufficiently evasive in relation to her employment since leaving the Club, to make it impossible to determine with any confidence what her earnings may have been.
Ms Giblin has not sustained a significant financial loss as she secured employment on 26 June 2023, shortly after the dismissal. On these bases, the Club submits Ms Giblin is not entitled to compensation.
In relation to Ms Giblin’s evidence that her employment at the Golf Club was unsustainable for her financially as the Golf Club was looking for part-time employees, Clubs NSW contacted the Golf Club, as they are a member club of Clubs NSW. On 8 November 2023, the General Manager of the Golf Club sent Clubs NSW an email advising that Ms Giblin responded to an advertisement on Seek and that the Golf Club’s records indicate that she commenced on 27 June 2023 as a Casual Bar Attendant Level 3. The last day that Ms Giblin worked was 12 September 2023. Ms Giblin subsequently reported in sick with suspected appendicitis. Ms Giblin was asked to keep the Golf Club advised of her condition but no further contact was received from her.
The Club submitted that Ms Giblin’s university placement from 18 September 2023 to 29 September 2023 was the real reason for her departure from the Golf Club, and that Ms Giblin has been dishonest in her submissions about her reason for leaving. Further, the email from Mr Tate is at odds with Ms Giblin’s evidence during the hearing, that she believed that the Club gave a negative reference to the Glasshouse Hotel which resulted in her failure to obtain employment at the Hotel. Ms Giblin claimed in her submissions filed on 1 November 2023 that Mr Tate advised her that he could not proceed with offering her role as Matthew Armstrong from the Coogee Legion Club provided her with a negative reference. Neither of these assertions align with the material now filed by Ms Giblin.
Finally, the Club submitted that Ms Giblin failed to mitigate her loss by only applying for casual roles which offer no guarantee in hours or a firm advancement of work.
Findings
I find that Ms Giblin took steps to mitigate her loss by applying for at least ten jobs after the dismissal. Contrary to the submissions made by the Club, these applications were not limited to casual roles, although Ms Giblin said during the hearing that she was seeking casual roles because these accommodated her studies. Further, some of these applications were for roles outside of the hospitality industry. In my view, it was reasonable for Ms Giblin to be seeking casual roles given that she was employed on a casual basis by the Club.
The applications included the seven roles applied for as shown in the records that Ms Giblin produced to the Commission. They also included the roles at the Coogee Diggers Club, and the roles that Ms Giblin was successful in obtaining at the Golf Club and the Hotel.
I do not accept the Club’s submissions that Ms Giblin was untruthful about her reasons for leaving the Golf Club as the email from the General Manager does not establish the reason why Ms Giblin left. Further, the payslips show that Ms Giblin worked for a week at the Hotel then did not work the following week, which was the week of her university placement. This shows that it is more likely that Ms Giblin left the Golf Club because she was successful in gaining employment at the Hotel rather than because of her university placement. This is consistent with Ms Giblin’s evidence that she did not regard her employment with the Golf Club as suitable. In any event, the reason that Ms Gibson left is not relevant to my consideration of this matter. I am satisfied that the steps Ms Giblin took to mitigate her loss were reasonable in the circumstances.
I accept Ms Giblin’s evidence that the hours offered by her employers were those that she was able to work. There is simply no reason for Ms Giblin not to accept available shifts given her evidence that she has suffered significant financial loss as a result of not being employed for a period of time and needing to borrow money from relatives to meet rent and living expenses, which still needs to be repaid.
I do not accept the Club’s submission that Ms Giblin has been evasive in relation to her employment since leaving the Club, and that this makes it impossible to determine with any confidence what her earnings may have been. Ms Giblin was forthcoming in providing detailed information to the Commission in relation to her earnings since the dismissal.
I also do not accept the Club’s submission that Ms Giblin was dishonest and gave untruthful evidence in stating that she had not been able to find suitable employment since the dismissal. Ms Giblin found herself in a distressing situation, having been wrongly accused by her employer of engaging in theft and fraud. It was in this context that Ms Giblin represented herself at the hearing. There is no indication that she has any knowledge of or background in law or workplace relations. It is therefore unlikely that Ms Giblin was aware of all of the matters which the Commission is required to consider in an unfair dismissal application. Once directions were issued in relation to the specific information that was required for the Commission to assess compensation, Ms Giblin willingly provided this.
At the hearing, Ms Giblin accepted that the email from Mr Tate did not say that he was not offering her role because of a negative reference from the Club. Ms Giblin said this is what she believed had occurred. It is clear from her evidence that Ms Giblin suffered significant distress and financial loss as a result of the dismissal and that this was exacerbated when she was not offered roles by the Coogee Diggers Club and the Glasshouse Hotel. Despite the reasons provided by Mr Tate by email to Ms Giblin for not offering her a role, the Club confirmed that it told the Glasshouse Hotel that it would not employ Ms Giblin again. The fact that Mr Tate sent the email to Ms Giblin a day after his conversation with the Club indicates it is more likely than not that Ms Giblin was not offered the job because of the Club’s unfavourable reference, notwithstanding the reason provided in Mr Tate’s email. It is within this context that Ms Giblin sought other roles. She remained unemployed for a period of approximately two months. By the time of the hearing, she had worked for the Golf Club for approximately seven weeks and had earned an average of $490.44 per week, less than half of what she was earning at the Club. Further, the opening hours of the Golf Club were significantly shorter than the Club which reduced the range of available suitable shifts. For these reasons, it was reasonable to for Ms Giblin to not regard this as ‘suitable’ employment.
It would have been preferable for Ms Giblin to be upfront with the Commission at the hearing on 11 August 2023 about the employment she had gained since the dismissal. However, it is understandable that she was reluctant to disclose these details given that these would have become known to the Club in circumstances where she believed that that the Club was providing unfavourable references. Further I note that Clubs NSW contacted the Golf Club in relation to Ms Giblin’s employment in preparing its submissions for the hearing in relation to compensation. There is no indication that Clubs NSW sought Ms Giblin’s consent to obtain information about her employment from the Golf Club.
Given that Ms Giblin was employed by the Golf Club at the time of the hearing, the statement in [164] of my decision[10]that ‘at the time of the hearing, Ms Giblin had not obtained alternative employment’ is incorrect. However, this does not alter my findings that Ms Giblin’s financial loss has been compounded by the reasons for her dismissal which has made it difficult for Ms Giblin to obtain alternative employment. These difficulties resulted in firstly, Ms Giblin being unable to obtain employment for a period of almost two months after the dismissal and secondly, Ms Giblin’s income once she obtained employment being significantly less than the average weekly amount she was earning while working at the Club.
Amount of remuneration earned by Ms Giblin from employment or other work during the period between the dismissal and the making of the order for compensation
Ms Giblin’s payslips show that the amount that she earned between the dismissal and 5 November 2023 from employment or other work is $8,852.58. This was calculated by adding the ‘year to date’ gross earnings specified in the first payslip issued by the Golf Club to Ms Giblin (which was for the final week in the 2022/2023 financial year), the last payslip issued to Ms Giblin by the Golf Club and the most recent payslip issued to Ms Giblin by the Hotel. The parties accepted that this was the correct methodology for calculating Ms Giblin’s income.
Ms Giblin provided evidence that she is unable to work for a period of six weeks while attending university placements. The first placement was from 18 September 2023 to 29 September 2023 and additional placements are from 20 November 2023 to 1 December 2023 and from 4 December 2023 to 15 December 2023. The Club submits that Ms Giblin’s decision to not work any casual shifts during these periods should be taken into account when assessing her entitlement to compensation. In response, Ms Giblin says that if she was still working at the Club, she could have worked about 20 hours per week during her placements on weekends and during the week outside of the placement hours. However, she has not been offered any weekend or other suitable shifts by the Hotel during these periods.
I am satisfied that the amount of remuneration earned by Ms Giblin from employment or other work during the period since the dismissal is $8,852.58 during the 19-week period from 26 June to 5 November 2023. This is an average of $491.81 gross per week not including the week beginning 18 September 2023 when she did not work while on student placement. I have divided the amount of $8,852.58 by 18 to calculate this figure as I have excluded the week beginning 18 September 2023. I note that Ms Giblin worked during the week beginning 25 September 2023 while on student placement, but it appears from the payslip that she only worked on Sunday 1 October 2023.
Ms Giblin’s evidence was that during the period 31 October 2023 to 28 November 2023, she was rostered to work on 2, 4, 9, 11, 12, and 14 November 2023. Ms Giblin is not rostered to work during the period 17 November 2023 to 1 December 2023, as she will be on university placement which takes place each weekday afternoon and evening and therefore will be unable to accept shifts during this time, apart from weekends. Ms Giblin was not offered weekend shifts by the Hotel during this period.
I accept Ms Giblin’s evidence that she has not been offered shifts by the Hotel which correspond with her availability during her university placement from 17 November 2023 to 1 December 2023. I note from Ms Giblin’s payslips from the Club that she frequently worked on weekends so I accept that it is likely that she would have been offered shifts by the Club which accommodated her availability during her university placement if she was still employed there.
Based on Ms Giblin’s average weekly earnings from the period from 26 June to 5 November 2023 of $491.81 gross, I estimate that Ms Giblin would have earned the sum of $983.62 during the two-week period from 6 November to 18 November 2023 and no amount during the two week period that she was on university placement until 1 December 2023.
Therefore, I find that the total remuneration that Ms Giblin would have earned from employment or other work during the period between the dismissal on 5 May 2023 and the making of the order for compensation on 1 December 2023 is $9,836.20 which is the sum of $8,852.58 and $983.62.
Amount of income reasonably likely to be so earned by Ms Giblin during the period between the making of the order for compensation and the actual compensation
In relation to the period from 2 December 2023 – 15 December 2023, I note that Ms Giblin is on university placement during this time, however there is no evidence before me that establishes that Ms Giblin has not been offered suitable shifts by the Hotel during this period. Based on Ms Giblin’s average weekly earnings from the period from 26 June to 5 November 2023 of $491.81 gross I am satisfied that the amount of income reasonably likely to be earned by Ms Giblin during the two week period between the making of the order for compensation on 1 December 2023 and the payment of compensation on 15 December 2023 is $983.62.
Other relevant matters
In relation to other relevant matters, Ms Giblin submitted that being investigated, accused of fraud and theft and not shown procedural fairness as well as ensuring she could not be gainfully employed by other hospitality venues due to poor references has severely impacted her confidence and her mental health. Ms Giblin lost faith that she would be able to gain work within the hospitality industry again and has suffered significant financial loss as a result of not being employed for a period of time due to circumstances out of her control.
As a result of the dismissal, Ms Giblin does not have the rapport or long-standing service with any current and future employers that she did and would have had if she had not been dismissed from the Club. The lack of rapport and service makes it difficult for her to work around her placements as she does not have the standing within the business she currently works for that other employees do to be flexible with her shifts.
During the time of her unemployment as a result of the unfair dismissal. Ms Giblin was still required to pay her weekly rent as well as all other living expenses which was very hard financially as she was not working. As a result Ms Giblin had to borrow money from her grandmother’s partner so that she was able to afford her daily expenses. Ms Giblin was unable to work during her placements in September furthering her financial strain. Due to this Ms Giblin is still required to pay back borrowed money on top of current and future expenses. If Ms Giblin was still employed at the Club, she would have been able to work a few shifts during her placement.
I have considered these matters in my determination of the amount to be paid as compensation to Ms Giblin in lieu of reinstatement.
Compensation – how is the amount to be calculated?
As noted by the Full Bench:
[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[11] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[12].[13]
The approach in Sprigg is as follows:
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 (remuneration lost).
Step 2: Deduct monies 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 ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 1
I have estimated the remuneration Ms Giblin would have received, or would have been likely to have received, if the Club had not terminated the employment to be $88,718.16 on the basis of my finding that Ms Giblin would likely have remained in employment until 18 November 2024. This estimate of how long Ms Giblin would have remained in employment is the ‘anticipated period of employment’.[14]
Step 2
I have found that the amount of remuneration earned by Ms Giblin from the date of dismissal was $9,836.20, and that the amount of income reasonably likely to be earned by Ms Giblin between the making of the order for compensation and the payment of compensation is $983.62.
Only monies earned since termination for the anticipated period of employment are to be deducted.[15] I therefore deduct the sum of $10,819.82 from $88,718.16 which leaves an amount of $77,898.34
Ms Giblin’s evidence at the hearing is that she is continuing to look for employment including roles related to her studies. Ms Giblin is likely to have a break from her studies during the period from the conclusion of her placement on 15 December 2023 until university resumes in February/March 2024. In these circumstances, Ms Giblin’s availability to work at the Hotel is likely to increase. Taking these matters into account, I believe that it is likely that Ms Giblin’s earnings will return to a similar level to that which she was receiving while employed at the Club from 16 December 2023, increased by 5.75% to take account of the Annual Wage Review increase from 1 July 2023.
There are 48 weeks remaining of the anticipated employment period from 16 December 2023 to 18 November 2024. I believe that Ms Giblin is likely to earn an average weekly amount of $1,115.04 from 16 December 2023, which is the average weekly earnings that Ms Giblin was receiving during the six months prior to the dismissal increased by 5.75% in accordance with the 2023 Annual Wage Review decision.[16] Ms Giblin is therefore likely to earn the sum of $53,521.92 during the period from 16 December 2023 to 18 November 2024, which is calculated by multiplying $1,115.04 by 48.
I have deducted an amount of $53,521.92 from $77,898.34 which leaves an amount of $24,376.42.
Step 3
I now need to consider the impact of contingencies on the amounts likely to be earned by Ms Giblin for the remainder of the anticipated period of employment.[17]
There is no evidence before me which establishes the occurrence of contingencies which might have brought about some change in earning capacity or earnings by Ms Giblin during the anticipated period of employment. The effect of my decision is that I found that there Ms Giblin is unlikely to experience ongoing future economic loss with respect to the period beyond 15 December 2023. The Commission has evidence before it of the amounts earned by Ms Giblin during the period from 26 June to 5 November 2023, so it has been necessary to make assumptions about future economic loss in respect of only a very limited period from 6 November to 15 December 2023. Such assumptions have been based upon evidence of considerable probative value including Ms Giblin’s roster for the period from 31 October 2023 to 28 November 2023 and her average weekly earnings for a period of more than 4 months. I therefore do not consider there to be any evidentiary basis or that it is otherwise appropriate to deduct any amount for contingencies.
Step 4
I have considered the impact of taxation but have elected to settle a gross amount of $24,376.42 and leave taxation for determination.
Having applied the formula in Sprigg, I am nevertheless required to ensure that ‘the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case,’[18] including my findings that:
It is likely that Ms Giblin would have remained employed by the Club until she finished her university studies in November 2024 if she had not been dismissed;
Ms Giblin took reasonable steps to mitigate her loss by applying for at least ten jobs after the dismissal;
Ms Giblin was unemployed for a period of approximately 2 months following the dismissal;
Ms Giblin’s average weekly income since obtaining alternative employment is $491.81 gross which is significantly lower than her average weekly earnings of $1,054.41 prior to the dismissal;
Ms Giblin’s financial loss has been compounded by the reasons for her dismissal;
Ms Giblin is likely to continue to earn an average weekly amount of $491.81 gross until 15 December 2023;
After 15 December 2023, Ms Giblin’s earnings are likely to return to their pre-dismissal level.
I have also taken into account Ms Giblin’s evidence at the hearing on 11 August 2023 that both the Glasshouse Hotel and the Coogee Diggers did not proceed with offering her employment after initially indicating verbally that they would do so and had hours that suited Ms Giblin’s university commitments.
I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act and that it does not include a component compensating for shock, distress and humiliation.
Compensation – is the amount to be reduced on account of misconduct?
If I am satisfied that misconduct of Ms Giblin contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
I am satisfied that misconduct of Ms Giblin did not contribute to the employer’s decision to dismiss. Therefore, the amount of the order for compensation is not to be reduced on account of misconduct.
Compensation – how does the compensation cap apply?
Section 392(5) of the FW Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:
(a)the amount worked out under section 392(6); and
(b)half the amount of the high income threshold immediately before the dismissal.
The amount worked out under section 392(6) is the total of the following amounts:
(a)the total amount of the remuneration:
(a) received by Ms Giblin; or
(ii) to which Ms Giblin was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b)if Ms Giblin 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 Ms Giblin for the period of leave in accordance with the regulations.
Ms Giblin was not on leave without pay or without full pay during the 26 weeks immediately before the dismissal.
Based on the payslips Ms Giblin tendered at the hearing, I find that the total amount of the remuneration received by Ms Giblin during the 26 weeks immediately before the dismissal was $27,414.69.
The high income threshold immediately before the dismissal was $162,000. Half of that amount is $81,000
The amount of compensation ordered by the Commission must therefore not exceed $27,414.69.
I have determined that the Club should pay compensation to Ms Giblin in the sum of $24,376.42 gross plus superannuation less taxation as required by law in lieu of reinstatement within 14 days of the date of this decision.
An order giving effect to this decision is published with this decision.
DEPUTY PRESIDENT
[1] [2023] FWC 2785
[2] He v Lewin [2004] FCAFC 161, [58].
[3] [2023] FWCFB 3500.
[4] This is the average weekly rate of $1,054.41 increased by 5.75% pursuant to the 2023 Annual Wage Review.
[5] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[6] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[7] [2023] FWC 2785, [164].
[8] Applicant’s Response to the Respondent’s Witness statements dated 8 August 2023.
[9] [2023] FWC 2785
[10] [2023] FWC 2785
[11] (1998) 88 IR 21.
[12] [2013] FWCFB 431.
[13] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
[14] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[15] Ibid.
[16] [2023] FWCFB 3500.
[17] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
[18] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
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