Ms Diane Lewis v Glendale RV Syndication Pty Ltd T/A Glendale Care Bundaberg

[2014] FWC 1086

[2014] FWC 1086

FAIR WORK COMMISSION

DECISION

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

Ms Diane Lewis
v
Glendale RV Syndication Pty Ltd T/A Glendale Care Bundaberg
(U2013/12109)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 4 MARCH 2014

Application for relief from unfair dismissal - harsh, unjust or unreasonable - whether remuneration from employment commenced prior to dismissal should be deducted from compensation ordered - whether such remuneration related to mitigation of loss - Sprigg decision - s.392(3)(e) - consequences for employees with part-time jobs - meaning of “take in to account” at s.392 - calculating actual loss distinguished from ordinary remuneration from other, pre -dismissal employment.

[1] This matter concerns an application by Ms Diane Lewis (“the Applicant”) under s.394 of the Fair Work Act 2009 (“the Act”) in respect of which a remedy is sought in relation to her alleged dismissal by Glendale RV Syndication Pty Ltd T/A Glendale Care Bundaberg (“the employer”).

[2] The employer provides services in the Bundaberg region to the frail and the aged under contract from the Commonwealth Department of Health and Ageing (“DOHA”), under the legislative auspices of the Aged Care Act 1997 (Cth). The Applicant was employed by the employer from December 2009 up until the time of the cessation of the employment relationship on 12 July 2013. In the course of her employment, the Applicant performed rostered duties as a casual care worker (under the Social, Community, Home Care and Disability Services Industry Modern Award (“the modern award”)).

[3] To provide context, because of the vulnerability of its clients and the need to manage its risks in such a complicated environment, the employer maintains certain work practice guides and codes of conduct. These include the following conduct directives from the employer’s Staff Handbook:

Ethical Conduct

Your conduct is to be professional, ethical and above reproach at all times. You are required to carry out your duties in a politically neutral manner and are not to use your position for personal gain.

Any discrimination, harassment, bullying, intimidating behaviour or use of your position to gain an unlawful, immoral or emotional advantage over another person will not be tolerated.

Gifts

Staff are not to accept gifts, purchase items or gain any other personal benefit from clients or the family of clients. This avoids misunderstandings, particularly with elderly clients and their relatives. You are prohibited from accepting loans of money or goods from a client or families of clients for any reason including petrol money or offers of loans or personal assistance. If a client offers an item as a gift the offer is to be refused as tactfully as possible. If the client is insistent, becomes upset or insists on giving a gift, you must notify your Care Manager immediately and forward the item to the office.

[4] On 28 June 2013, the employer’s Care Manager, Ms Sandy Cain, was advised of certain circumstances which she believed gave rise to a potential issue of unethical behaviour on the part of one of the employer’s care workers; the Applicant.

[5] Ms Cain’s evidence was that another care worker, Ms Jenny Topp, informed her that a client had indicated to her that a friend of that client, who is also a client of the employer, gave money to one of the employer’s care workers “because she went to him crying”.

[6] Ms Topp was also said to have indicated to Ms Cain that the client had further indicated that the care worker’s ex boyfriend “turned up at his house drunk and started abusing him so he called the police”. It was said that the client had provided a statement to the police about the incident.

[7] Ms Cain investigated the allegation. She firstly visited the client who had provided the information to Ms Topp. That client confirmed the information that had been provided to Ms Topp.

[8] A meeting was subsequently held between Ms Cain, Ms Topp and the Applicant. That meeting took place on 1 July 2013.

[9] Ms Cain says she raised the issue of accepting gifts or taking money or loans from clients and questioned the Applicant whether she had any recent dealings with clients in this regard.

[10] According to Ms Cain, the Applicant denied borrowing money from any clients.

[11] Ms Cain posed a question as to whether the Applicant’s ex-boyfriend had visited a client and abused him, resulting in the client calling the police. The Applicant replied that it was not true that the ex-boyfriend went to the house, but her ex-boyfriend did phone a client some time ago and the police were called.

[12] There appears to have been no discussion whatsoever about the context of this admission, and whether it in any way reflected detrimentally upon the Applicant.

[13] Ms Cain’s further evidence was that:

Diane was told that she was to be stood down until the issue was further investigated.

[14] Under cross examination Ms Cain’s evidence in this regard fell into doubt, however.

[15] Shortly thereafter, Ms Cain visited the client who had been the subject of the allegations, as they were.

[16] The client indicated to Ms Cain that he did not have any issues with his care worker.

[17] Ms Cain indicated that she was going to switch care workers, as is a common practice, and enquired as to whether the client had any concerns in that regard. He did not indicate any concerns and was said to be looking forward to meeting someone new.

[18] Subsequently, the client contacted Ms Cain by telephone and requested that he retain the Applicant as his care worker. Ms Cain said he sounded distressed over the situation.

[19] As a consequence, Ms Cain again visited the client, this time on 5 July 2013. The client made no reference to the prior conversation that occurred (as referred to above). The client was expressly asked as to whether or not he had ever loaned a care worker money or felt pressured to do so. The client responded with the words (according to Ms Cain) as follows:

My dear, I have been a businessman all my life and would never put anyone at risk of losing their jobs. I understand there are policies to follow even though I may not agree to all of them but I do understand the consequences that the staff may face if they do not follow correct procedure.

[20] There is no direct evidence provided by any of the witnesses as to the meeting, conducted a week later, at which the Applicant’s employment came to an end. The General Manager - Ms Maryanne Heading - stated to her knowledge that she had been informed by the Aged Care Co-ordinator based in Melbourne, Ms Michelle Penson, that Ms Penson had met with the Applicant and that the outcome of that meeting was the Applicant had tendered her resignation. The Applicant’s resignation formed part of the documentation tendered in these proceedings. It was signed by the Applicant on 12 July 2013 and merely stated:

Dear Michelle

I hereby tender my resignation effective 12th July 2013.

Yours sincerely

[21] Ms Heading stated that she was informed (presumably by Ms Penson) that during the meeting the Applicant had signed the letter of resignation, as set out above.

[22] The Respondent submits that the Applicant resigned her employment of her own volition.

[23] Though it went unstated, the Respondent was contending impliedly that the application was outside of the Commission’s jurisdiction because there had not been a dismissal at the employer’s initiative for the purposes of s.385 of the Act and s.386 of the Act, which provide as follows:

385 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; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[...]

[24] I will return to this matter of jurisdiction below.

[25] The Applicant’s evidence was that she met with Ms Penson on 12 July 2013. Ms Cain was also in attendance at that meeting.

[26] The Applicant contends that she was informed at the outset that:

“Your not on the roster anymore” (sic)

[27] The Respondent’s own ‘Statement of Facts and Contentions’ states that:

Sandy Cain told Diane Lewis that she would not be rostered for future shifts.

[28] The Applicant enquired as to what the reason for that decision might have been and, she says, she was told that:

“It comes from Melbourne.”

[29] The Applicant was subsequently informed that:

“The clients don't like you.”

[30] The Applicant says that at this point in the conversation she stood up and walked out to her car to obtain some documents and paperwork belonging to her employer to return to the office. Upon her return she spoke with Ms Cain who informed her that the manager of another facility had indicated that she required some help the coming weekend. The Applicant states that she replied:

“im too upset to talk to her” (sic)

[31] The Applicant went on to claim that it was then “suggested” that “the best thing for me would be to resign”. Ms Cain was then said to have printed off a copy of a resignation. The Applicant signed the resignation.

[32] The Applicant claims that:

“because of my employer's harsh treatment I was left in financial hardship as I am a single earner with a son with special needs. It has also contributed to my mental health deteriorating to state that I now require medication.”

[33] The Applicant does not seek reinstatement. Instead, the Applicant states that it took her 11 weeks to find a job and return to work. The Applicant therefore is seeking compensation for 11 weeks lost wages, which she asserts amounts to $7586.00 gross. This amount was to be modified (upwards) by the employer in subsequent communications to a figure of $7624.98 gross.

Was there a dismissal at the initiative of the employer for purposes of s.385 of the Act?

[34] The evidence before me is that the Applicant’s employment was terminated at the initiative of the employer upon the Applicant being informed that she was not on the roster anymore.

[35] The Applicant was subsequently given reasons for the employer’s decision in this regard, albeit in vague terms.

[36] The fact that the Applicant subsequently signed a resignation does not substitute for the conduct of the employer in previously indicating to her that she had been removed from the roster.

[37] On the Applicant’s evidence - and that is the only evidence before me - she had been removed from the roster on a permanent basis. The suggestion that she obtain work with another employer (and that she was given reasons for the decision) reinforces my view that the employer had taken a decision that it no longer wish to utilise the Applicant’s services.

[38] The Applicant had been an employee working rostered hours as a casual care worker since 2009. The decision to remove her from the roster on a permanent basis for particular reasons constituted a dismissal at initiative of the employer.

[39] The application is therefore within jurisdiction for the purposes of s.385 of the Act. I now turn to the substantive matter.

LEGISLATIVE PROVISIONS

[40] The relevant legislative provisions arise under s.387 of the Act which reads 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.

[41] I turn to the substantive requirements of s.387 of the Act.

(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)

[42] The employer’s materials did not make out the case that there was a valid reason for the dismissal of the Applicant. It appears as though the employer was genuinely suspicious of the Applicant’s activities in relation to a client in so far as the Applicant’s ex-boyfriend had made telephone contact (it appears with the client), and a police complaint arose subsequently (it appears).

[43] But despite the investigation by the employer the client in question provided no information about this incident.

[44] No-one knows the identity of the caller to the client as a fact. It is presumed by the Applicant it was her ex boyfriend as he had mentioned her name, and at an earlier time (in 2010), that person had contact with the client in relation to repairing a television set. That person also had been the subject of series of AVOs and had been jailed for violation of such orders, according to the Applicant. But there is no factual matrix relevant to the incident. The client said nothing about the incident to Ms Cain. There is no police complaint report in evidence. The Applicant presumes that any person making such a call was likely to be her ex-boyfriend.

[45] Given this, there is no evidence whatsoever that the Applicant herself was culpable in any way in relation to an approach being made to the client, which gave rise to the police complaint. The fact that the source of the complaint arose from the conduct of the Applicant’s ex-boyfriend may give rise to a suspicion of the Applicant’s involvement in the incident (and whatever the circumstances were that gave rise to it). But a suspicion alone is not sufficient to found a valid reason for dismissal.

[46] It is difficult to be critical of an employer acting in the interests of its clients to minimise the risk of any misconduct, and to ensure that its clients’ vulnerable circumstances are not exploited.

[47] Be that as it may, there is no evidence that the Applicant was involved in any misconduct herself. She is more likely to have been a victim herself. Perhaps further investigation might yield a wide body of evidence. The police report, if it exists, may illuminate the circumstances. And other steps, perhaps, could have been taken to minimise the risk to clients (such as rotating the Applicant among clients for a period and allowing the police to action the (apparent) complaint).

[48] I add also that there had been a suggestion in the evidence that the Applicant had approached the client in question for a loan. This matter was not made out whatsoever on the evidence. The matter was probed in the 1 July 2013 meeting and was exhausted at that point. No further action was taken. The Applicant was cross-examined on the issue again during these proceedings, and that yielded no advance in the situation, other than revealing that the Applicant on one occasion was given the gift of a plant from a client’s garden.

[49] In the end, I don't think the employer pressed these matters with any genuine belief either. Its motivation, which I have commented upon above as being a laudable objective, was to minimise any potential risks to its clients.

[50] In all, the current state of the evidence is insufficient to find that there was a valid reason for the Applicant’s dismissal.

(b) whether the person was notified of that reason

[51] The Applicant was not notified of the reason for her dismissal in advance. The reasons for the dismissal as enunciated at the meeting of 12 July 2013 were in very broad terms and in any event did not reflect on the critical incident (which appears to have been the primary source of concern to the employer).

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[52] The meeting of 12 July 2013 as the Applicant has described it (and she is the only person to give direct evidence in this respect) did not afford any opportunity to reply to the reasons as to why she had been removed from the roster on a permanent basis, and thus dismissed from her employment.

(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

[53] This consideration does not arise in the circumstances. There was no opportunity for the Applicant to seek the assistance of a support person in any event (which is a matter that may have some weight to the final evaluation as to whether the dismissal was harsh unjust or unreasonable).

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[54] The dismissal of the Applicant did not concern an allegation of unsatisfactory performance.

(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

[55] The employer’s business comprises a very small number of full-time administrative or management related staff and a large number of field-based care workers. It is evident to me over the course of the hearing that the small scale of the enterprise along with it’s particularly risk averse perspective on its business explains its perfunctory approach to the dismissal.

(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

[56] As I have mentioned immediately above, the employer had no dedicated human resource personnel with which to manage the situation in which it found itself. It adopted a perfunctory process in order to minimise its risks. A person with human resource management expertise may have been able to better manage those risks whilst giving closer regard to the Applicant’s interests.

(h) any other matters that the FWC considers relevant

[57] There are no other further matters that I consider relevant, but that the Applicant herself claimed the dismissal was particularly harsh as she was a sole wage earner and has responsibility for a child with special needs.

CONCLUSION

[58] In my view, given the circumstances above the Applicant was dismissed harshly unjustly and unreasonably. I come to this view notwithstanding that the employer had few resources with which it could manage the situation in which it found itself. In the end, I think it is apparent to a reasonable person that the Applicant was not, on the evidence, the instigator of any misconduct, or complicit in it. Nor had she offended any policy or protocol in a manner that could be demonstrated.

REMEDY

[59] Section 390 of the Act reads as follows:

Division 4—Remedies for unfair dismissal

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.

Note: Division 5 deals with procedural matters such as applications for remedies.

[60] The Applicant is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise a discretion as to whether the Applicant can be reinstated.

[61] Section 391 of the Act provides as follows:

391 Remedy —reinstatement etc.

Reinstatement

(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

[62] I would neither reinstate (by re-appointing) the Applicant to her former position nor order that she be appointed to another equivalent position with the Respondent, or any associated entity of the Respondent, on the same or any other site.

[63] This is because the Applicant herself does not request reinstatement or otherwise. The fact that an applicant does not seek to be reinstated (or otherwise) is a significant reason for not exercising the discretion to reinstate etc. Where an employee is unwilling to return to the workplace a productive and cooperative relationship is unlikely to result.

[64] Because of my findings in this regard are now turn to consider compensation.

392 Remedy — compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(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.

[65] In respect of the above matters that I must take into account I find as follows:

(a) the effect of the order on the viability of the employer’s enterprise

[66] There is no evidence that any order I might make for compensation would in some manner affect the employer’s viability.

(b) the length of the person’s service with the employer

[67] The Applicant had been employed with the employer since 2009, as set out above. This is a length of service that lends support to the making of an order for compensation.

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

[68] On the evidence available to me, the Applicant would have been likely to have remained in employment for a period of at least a further 12 months.

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

[69] The Applicant gave evidence that she had taken a range of steps to secure alternative employment and to mitigate her losses following the dismissal. She gave evidence of various applications she had made to aged care facilities; upgrading her computer software so that she could send her curriculum vitae to potential employers via SEEK; and otherwise. The Applicant’s efforts to mitigate her losses lend further support to making of an order for compensation.

(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.

[70] The Applicant had for some time prior to her dismissal performed duties at another aged care facility (Argyle Aged Care) on weekends, for what appears to be a 4 hour shift (alternate Saturdays and Sundays).

[71] This is not remuneration earned by the Applicant from employment that was commenced following the dismissal and therefore cannot reasonably be said to be remuneration that was earned in mitigation of her losses (which arose because of the dismissal).

[72] In my view, it is arguable that s.392(2)(e) of the Act is intended to be construed in the context of remuneration that arises following the dismissal and which serves to mitigate the losses incurred because of the loss of the prior remuneration.

[73] Indeed, the decision of the Full Bench in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 considered the deduction of monies earned since the dismissal and the efforts in mitigation to be closely, if not integrally related matters:

(iv) The efforts at mitigation by the appellant have resulted in income that has been taken into account in estimating total remuneration lost. The applicant’s effort, and the relative lack of success from it, are sufficient to exclude any further deduction (s 170CH7)(d));

[74] In effect, the principal of mitigation operated in a dualistic manner: if there had been no efforts to mitigate the losses following dismissal then a deduction in “compensation” may follow; or if employment was obtained following the dismissal then any remuneration obtained there-from was remuneration which mitigated any losses (and thus was to be deducted from “compensation”).

[75] It does not appear to me that remuneration earned since a time prior to the dismissal, and which continued to be earned following the dismissal, should be remuneration deducted from any compensation that may be ordered as that remuneration had not been earned from employment obtained following the dismissal. That is, remuneration derived from employment obtained prior to the dismissal is not remuneration that was earned in mitigation of the losses arising from the dismissal.

[76] An employee who had been unfairly dismissed and who was compensated as a consequence, would never have their losses compensated, in actuality.

[77] Such an employee would be always at a net disadvantage irrespective of his or her compensation, following a dismissal that had been found to be harsh, unjust or unreasonable. This would be a particularly problematic outcome for any employee who maintains two part-time jobs with commensurate wages at the time of his or her (unfair) dismissal from one of the jobs.

[78] But that said, the Act, however, now distinguishes between:

(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. [my emphasis]

[79] The plain words of the Act as it now is require the Commission to have regard to the “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”, without qualification.

[80] Therefore, irrespective of whether the remuneration the Applicant has earned is from work secured prior to the dismissal or whether it was from worked secured after the dismissal (and therefore in mitigation of the losses that would otherwise have been incurred), it must be taken into account by the Commission.

[81] That said, s.392 of the Act provides relevantly as follows:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(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. [My emphasis]

[82] The notion of “taking into account” a matter (such as those described in s.392 of the Act) connotes a genuine consideration of the relevant provision and the apportionment of the appropriate weight in the circumstances.

[83] Section 392(2)(g) of the Act also provides an opportunity for the Commission to take into consideration any conditional or contextual circumstances that are relevant to the proceeding on foot and that bear upon the various provisions set out, or otherwise.

[84] In my view, s.392 of the Act does not mandate the Commission to deduct “any remuneration earned since the dismissal” (under s.392(2)(e) of the Act), but only to take that matter into account (the remuneration) in the context of the wider circumstances of the application as a whole. Section 392(2) of the Act makes this clear: the matters set out in s.392(2)(a) through to s.392(2)(g) of the Act must be taken into account, but the Commission must also take “into account all the circumstances of the case” (of which s.392(2)(a) through to s.392(2)(g) of the Act ultimately may only be a subset).

[85] Given this, the remuneration earned by the Applicant from her employment entered into prior to the dismissal must be given weight in the context that it would serve to limit significantly, if not defeat, the goal of compensation. It is not remuneration earned in mitigation of the loss of employment. While I take s.392(e) of the Act into account, in the circumstances of this matter I will not give it its literal effect (at least in so far as it applies to deducting remuneration earned from work entered into prior to the dismissal).

[86] Though decided under earlier legislation, I note in this regard that the Full Bench in Re: Ellawala 1 took the view that monies earned after the anticipated period of employment should not be deducted from an order for compensation because it would defeat the purpose of the order itself:

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the "anticipated period of employment". This amount is then reduced by deducting monies earned since termination. Only monies earned during the period from termination until the end of the "anticipated period of employment" are deducted. An example may assist to illustrate the approach to be taken.

[35] In a particular case the Commission estimates that if the applicant had not been terminated then he or she would have remained in employment for a further 12 months. The applicant has earned $3,000 a month for the 18 months since termination, that is $54,000. Only the money earned in the first twelve months after termination - that is $36,000 - is deducted from the Commission's estimate of the applicant's lost remuneration. Monies earned after the end of the "anticipated period of employment", 12 months after termination in this example, are not deducted. This is because the calculation is intended to put the applicant in the financial position he or she would have been in but for the termination of their employment.[My emphasis]

[87] I think on these approaches it is reasonable to conclude that it is only the remuneration that is earned after the dismissal which is in mitigation of the losses that is to be taken into account. But as demonstrated below, identifying this remuneration is not necessarily a straight forward task.

[88] Further to this, the Full Bench in Re: Moore Paragon, 2 again under different legislation, adopted the view (as I believe it to be) that the appropriateness of the award of compensation in any particular factual matrix was to be viewed globally, and not as a matter of strict calculation.3

[89] In this particular instance, determining the Applicant’s remuneration from her other employment has been a somewhat fraught exercise, involving a number of iterations following the hearing of the matter.

[90] To the best of my knowledge, the Applicant earned $5021.99 (gross) from her employment at Argyle Aged Care in the 11 week period following her dismissal (which is the period of time the Applicant lost income owing to the dismissal).

[91] Had she not been dismissed, the Applicant would have earned $7624.98 (gross) with the employer (Glendale Care), over the same period of time.

[92] If the Applicant had not been dismissed by the employer, it appear that she would have earned $1573.00 (gross) at Argyle Aged Care (based on 4 hours per weekend, alternating Saturday and Sunday work). This is the remuneration to which the Applicant would have been entitled if she had continued to perform her ordinary weekend shifts at Argyle Aged Care and had not been dismissed by Glendale Care. On my reasoning above, this remuneration is not remuneration that was earned in mitigation of her losses arising from her dismissal. It is the remuneration that she would ordinarily have been entitled to earn, regardless of the dismissal.

[93] Because of the dismissal, it appears that the Applicant was able to enhance her hours of work at Argyle Aged Care and earn a higher level of remuneration than she would have done, but for the dismissal. It is this enhanced, post dismissal remuneration that must be taken into account for purpose of determining compensation.

[94] This amount is the sum of the difference between her actual remuneration in the 11 week period ($5021.99 (gross)) and the remuneration she would have expected to have earned from Argyle Aged Care but for the dismissal ($1,573.00 (gross)). That sum is $3448.99 (gross).

[95] Having derived this sum as being the remuneration earned since the dismissal (over the 11 week period) which is in mitigation of the Applicant's losses, I must deduct that now from the remuneration the Applicant would have earned from remaining in the Respondent's employment over the same period of time. That is, I must deduct $3448.99 (gross) from $7624.98 (gross), which gives a sum of $4175.99 (gross).

[96] The remuneration the Applicant has lost because of her dismissal therefore amounts to $4175.99 (gross).

(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

[97] This is not a matter that requires any further consideration for reason the matter is already comprehended in my approach (which is premised on the Applicant's admission that her remuneration following re-employment eleven weeks after her dismissal was and is commensurate with her former remuneration).

(g) any other matter that the FWC considers relevant

[98] I indicate that I make no deduction for contingencies as I do not see them as being relevant in these circumstances. There is no evidence that the Applicant was otherwise exposed to loss of income over the period of anticipated employment. Sickness, accident, unemployment and industrial disputes are the main contingencies. I see no reason to apply any discount arising from such contingencies. Some of these apparent contingencies do not necessarily result in lost income in the modern workplace.

[99] Section 392(3) of the Act provides as follows:

Misconduct reduces amount

(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.

[100] Though the employer had suspicions about the Applicant’s involvement in a particular incident in which her boyfriend telephoned a client, nothing was made out beyond a level of suspicion. There was no misconduct made out of any kind in relation to the Applicant having sought loans or taken gifts of any substance from her clients. There is no misconduct of a material and proven nature that would justify reducing the amount of any compensation to be ordered.

[101] Section 392(4) of the Act provides as follows:

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.

[102] My order for compensation makes no allowance for the above proscribed matters or considerations.

[103] Section 392(5) of the Act provides as follows:

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.

[104] Section 392(6) of the Act provides as follows:

(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.

[105] The order that I propose to make does not need to take into account the statutory cap.

[106] Section 393 of the Act provides as follows:

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[107] The Respondent has made no application in the course of these proceedings to pay any amount I may order to be paid as compensation in instalments.

CONCLUSION IN RELATION TO REMEDY

[108] I add for sake of clarity that I have found that an order for compensation by way of a remedy is appropriate in the circumstances I have set out above.

[109] That determined, it is apparent from my discussion above that the Applicant would have been employed for a lengthy period of time, and much more than the 11 weeks to which the Applicant is seeking what she refers to as “compensation” in lieu of reinstatement.

[110] The Applicant herself takes no issue that her remuneration in her new position has been commensurate with that in her former position.

[111] For the reasons I have given earlier, and on the basis of the calculations there completed, I order that the Respondent pay to the Applicant an amount of $4175.99 (gross).

[112] The amount ordered to be paid must be subject to ordinary taxation.

[113] The amount ordered to be paid must be paid to the Applicant’s usual bank account within 14 calendar days of the date of this decision.

[114] An order to the above effect will issue along with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms D. Lewis, Applicant

Ms M. Heading, of the Respondent

Hearing details:

By video link

2014

14 February

 1   Ellawala v Australian Postal Corporation Dec 421/00 M Print S5109.

 2   Smith, Arthur and Kimball, Brett v Moore Paragon Australia Ltd PR942856, at PN2.

 3   The Full Bench in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge[2013] FWCFB 431 (at PNS46-50) appears to have dealt with similar circumstances as those I have raised above, though it is not entirely clear that this is the case. I have not sought to rely upon it as a consequence.

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<Price code C, PR547744>