Ms Diane Miles v Hansen Yuncken Pty Ltd

[2013] FWC 3469

[2013] FWC 3469

FAIR WORK COMMISSION

DECISION

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

Ms Diane Miles
v
Hansen Yuncken Pty Ltd
(U2012/10488)

COMMISSIONER HAMPTON ADELAIDE, 21 JUNE 2013

Termination of employment - alleged redundancy - concession that dismissal not a genuine redundancy within meaning of the Act and was unfair - remedy - joint position that reinstatement not appropriate - compensation assessed and order made.

1. Background and history of the matter

[1] This matter concerns an application pursuant to s.394 of the Fair Work Act 2009 (the Act) by Ms Diane Miles (the applicant) seeking a remedy for an alleged unfair dismissal. The respondent is Hansen Yuncken Pty Ltd. 1

[2] The unfair dismissal application was lodged with the Fair Work Commission 2 (the Commission) on 14 June 2012 claiming in effect that the alleged redundancy dismissal was not genuine and was unfair. The respondent subsequently filed a response denying the allegations and raising a jurisdictional issue based upon the contention that the dismissal was a genuine redundancy within the meaning of s.389 of the Act.

[3] The application was subject to conciliation but did not resolve. Subsequently, a dispute arose as to whether the applicant had discontinued the matter and whether it could and should be “re-opened”. Having heard that issue, I concluded in mid March 2013 as follows:

“[49] On the basis of the above findings, it is not necessary to consider whether the Fair Work Commission has the power to re-open the application in the sense that would arise if it had been properly discontinued. To the extent that a discretion exists as to whether the matter should now be listed for hearing, there are some competing considerations.

[50] I accept that the respondent has acted on the understandable presumption that the application was going to be discontinued and that it is likely that the applicant does have an alternative course of action open, being to make a complaint to the AHRC. I also accept that the delay in having this matter determined has the potential to create prejudice to the respondent and that much of the responsibility for that delay must rest with the applicant.

[51] However, fundamentally an application with standing should be heard and determined according to the Act and the prejudice associated with the delay can be considered and taken into account in terms of any remedies that might ultimately be considered. Further, there are presently no grounds upon which the unfair dismissal application can or should be dismissed by the Commission.

[52] Accordingly, I consider that the unfair dismissal application is properly before the Fair Work Commission and it is appropriate that it be listed for hearing and determination. Given the respondent’s original jurisdictional challenge based upon the existence of a genuine redundancy, directions will soon be issued to permit that issue to be expeditiously heard.”  3

[4] After directions had been issued for the hearing and determination of all of the remaining issues, including jurisdiction, merit and remedy, the parties jointly contended that the matter should proceed upon a concession by the respondent, and an agreed approach in relation to remedy, in the following terms:

“The respondent did not provide procedural fairness to the applicant prior to the decision to terminate her employment on 31 May 2012 and, accordingly, the applicant was unfairly dismissed by the respondent on 8 June 2012 within the meaning of section 385 of the Act.

An order reinstating the applicant to her role with the respondent immediately prior to dismissal is not appropriate.” 4

[5] The respondent subsequently confirmed to the Commission that this included a concession that the dismissal was not a genuine redundancy within the meaning of the Act. 5

[6] In light of the agreed position and the concession of the respondent, I find that the applicant was unfairly dismissed within the meaning of s.385 of the Act.

[7] I have now heard evidence and submissions in relation to remedy. This has also included evidence concerning the circumstances of the dismissal itself as influences that issue.

2. The position of the parties

[8] Mr Deegan, who appeared with permission for the applicant, submitted that the compensation granted should be the maximum available under the Act. This was based upon the following contentions:

• The applicant’s employment, in the absence of her dismissal, should be projected for a period of five or six years given the nature of her role within the New Royal Adelaide Hospital (NRAH) construction project and the assurances given at the time of employment;



• There was no evidence that her redundancy would have inevitably resulted; rather, the evidence was that another employee was engaged to replace the applicant;



• No evidence to support the contentions of the respondent about work performance issues concerning the applicant had been provided and the handling of the dismissal of the applicant represented “disgraceful conduct”; 6



• The applicant had made considerable efforts to mitigate her losses and had only limited success in gaining alternative employment;



• The amount the applicant had earned from alternative employment must be taken into account but should be afforded little, if any, weight given the delay in finalising the matter caused by the respondent and the time between termination and decision; and the extent of the payment taken into account must accord with the duration of the employment;



• No adjustment should be made for any delays caused by the applicant in relation to these proceedings given the conduct of the matter by the respondent;



• The amount paid by the respondent as redundancy pay should be taken into account however the notice paid should not be deducted as it was a contractual entitlement that would apply whenever a termination took place; and



• No adjustment should be made on account of the social security payments received by the applicant.

[9] The applicant provided a witness statement and gave evidence.

[10] Mr Manos, who appeared with permission for the respondent, submitted that any compensation awarded should be limited given the circumstances of the matter. It contended that any compensation should be in the order of four 7 or eight weeks8 pay, less any relevant remuneration already received.

[11] The respondent’s position was based upon the following contentions:

• The applicant was employed for a little over a year and this was a relatively short period;



• The applicant was made redundant when her position was no longer required;



• The Commission must allow for the possibility that the applicant’s employment would have been terminated “lawfully” in any event and that if her employment was terminated for redundancy in a procedurally fair manner, it would only have continued for a short further period;



• The amount earned by the applicant from alternative employment and the additional payments made by the respondent beyond the contractual entitlements should be taken into account and deducted; and



• In the event that the Commission does not accept that the dismissal was validly based upon redundancy, the employment would have concluded in two to three months due to performance concerns and in that case, the six weeks of severance payments made by the respondent should be taken into account and also deducted from any projected losses.

[12] The respondent relied upon the evidence of the respondent’s Human Resources Manager, Mr Steven Jarman.

[13] I note that each party also provided detailed written and oral submissions canvassing each of the considerations provided by s.392(2) of the Act and I have had regard to such in determining this matter.

3. Observations on the evidence

[14] I found that the applicant was a genuine witness and was generally convincing on the key events. However, the recall of some events was not always clear and elements of her evidence were influenced by her subjective views of others.

[15] Mr Jarman’s evidence was for the most part clear and reliable. He also, in my view, did not seek to mislead the Commission on any matters and I accept his evidence as to the events and facts that he could directly confirm. However, he was not the person who made most of the substantive decisions that ultimately led to the applicant’s dismissal. Rather, he implemented the decisions to employ the additional administrative employee and the decision to utilise resources in the company’s head office, and he put the applicant’s dismissal into effect.

[16] All of these decisions were made by others. It is not necessary to draw a negative inference from the failure to call the actual decision makers in this case. 9 It is sufficient to deal with the application on the basis that there is little direct evidence to support certain elements of the decision to dismiss the applicant as contended by the respondent.

4. The broad facts

[17] I will deal with the detailed facts and considerations arising from s.392(2) of the Act in Part 5 of this decision. However, some broad factual context is necessary to establish the basis for those considerations.

[18] The applicant is now in her mid fifties and commenced employment with the respondent on 11 May 2011 as an Administrative Assistant in connection with the design and construction of the NRAH.

[19] The applicant made an application for the position having worked for some fourteen years within the South Australian public service. In deciding to take up the position, the applicant was influenced by an understanding from Mr Jarman to the effect that if everything was going well in her employment she could expect to work on the NRAH project for some five to six years and then be considered for employment within the ongoing operations of the respondent. 10

[20] The applicant’s employment contract was however subject to a six months probationary period and mutual termination provisions. In the case of the dismissal by the respondent (other than summary termination), the contract provided for four weeks notice or pay in lieu of notice and additional notice if the applicant was over 45 years of age and had five or more years of service.

[21] In the case of redundancy, the contract provided a scale of severance payments from nil with less than one year of service, four weeks with one but less than two years of service, and up to 12 weeks for 10 or more years of service.

[22] The applicant’s role involved assisting the commercial team within the NRAH project and this included administrative work associated with subcontractor contracts, orders, invoicing and various other clerical tasks associated with that team.

[23] The applicant reported to the respondent’s NRAH Commercial Manager.

[24] The work performed by the applicant was relatively constant and demanding and no unsatisfactory performance matters were formally raised by the respondent with the applicant at any time during her employment. The applicant’s ongoing employment was confirmed in November 2011 following the completion of the probationary period.

[25] In late 2011, Mr Jarman was informed by the Commercial Manager of some apparent concerns with the applicant’s performance, however, these matters were not, at any time, formally or informally raised by him with the applicant.

[26] In January 2012, Mr Jarman was informed by the Commercial Manager that he had requested the Executive Assistant to the NRAH Project Manager (the EA) to informally raise performance concerns with the applicant and suggest that she start looking at alternative employment. I note that the applicant and the EA were acquaintances prior to the applicant commencing employment with the respondent. I note also that there was a later conversation to the same effect between Mr Jarman and the Commercial Manager in March 2012, during which Mr Jarman advised the Commercial Manager that any performance concerns should be handled through a formal performance improvement process, which was not done.

[27] In both February and March 2012, the EA did informally advise the applicant to the effect that the Commercial Manager wanted to “move her on” and that the applicant should commence to look around for other work. There was no detail of any performance concerns or justification for that advice given to the applicant.

[28] I also note that in March 2012, the EA further advised the applicant that as a result of discussions with the Project Manager, her job was safe and that no one was going to be leaving the NRAH project.

[29] In early 2012, the applicant was also informed that an additional Administrative Assistant would be employed in the commercial team. This was consistent with the build up with the NRAH project and the increased number of subcontractors being engaged.

[30] The need for an additional assistant was identified by the respondent in late 2011 and discussions with the person who was ultimately appointed to that position commenced in January 2012, but were not finalised until late March. This was formalised on 2 April 2012 when a written offer of employment was made with a start date eventually confirmed for late May.

[31] During March 2012, the respondent identified that it had some excess administrative capacity in its head office and discussions were held between Mr Jarman and the Commercial Manager about making one of the administrative assistant positions redundant by moving much of the contract administration work to that office.

[32] Despite these developments, the recruitment of the new administrative assistant was completed and she eventually commenced employment on 28 May 2012. The applicant was requested to train the new assistant, purportedly with a view to sharing the workload.

[33] On 30 May 2012, the commercial team attended a monthly team dinner. This included the applicant, the Commercial Manager and the EA. An incident occurred involving the Commercial Manager and another employee. Some tension was also evident between the Commercial Manager and the EA and this was witnessed by the applicant and others. The latter issue was associated, at least in part, by the decision of the EA to close the “bar tab” and the Commercial Manager’s view that this should not have been done. This also involved the applicant being instructed by the Commercial Manager to reopen the tab.

[34] During 31 May 2012, the applicant responded to enquiries from other team members who had left the dinner early about the events and during a conversation with the Commercial Manager, advised him in a jovial manner that his conduct on the previous evening had been questionable.

[35] Later that day, the EA also questioned the applicant about the Commercial Manager’s conduct and had a subsequent discussion with him.

[36] On the same day, Mr Jarman, apparently acting on the instructions of the Commercial Manager, advised payroll by email that they were “looking like making (the applicant) redundant effective 15 June 2012”.

[37] On 7 June 2012, the applicant was mistakenly included in an email between Mr Jarman and payroll requesting the applicant’s redundancy payments be calculated as they were looking to make the redundancy effective the following day. This email contained the string of emails on the subject dating back to 31 May 2012.

[38] On 8 June 2012, the applicant read the email and after being contacted by Mr Jarman was provided with written advice of her dismissal by him and the Commercial Manager. It read as follows:

“Dear Diane

Notice of operational change

We have recently completed a review of our staffing levels and potential future requirements. The forecast for future work is insufficient to maintain current staffing levels.

As a result of this review we regret to advise that we have determined that your position with Hansen Yuncken will become redundant effective 8 June 2012.

We have investigated redeployment options for other positions within our State operations but have nothing suitable at the current time.

As per your employment contract your final pay will include 5 weeks pay in lieu of notice (check this), a redundancy payment of 6 weeks pay and the balance of your accrued Annual Leave. This payment will be processed on your last working day and will be deposited into your nominated bank account, with payment advice sent to your current mailing address.

We thank you for your contribution while working for Hansen Yuncken and wish you every success for the future.

Yours faithfully

HANSEN YUNCKEN PTY LTD”

[39] Upon questioning the reasons for the dismissal, the respondent advised the applicant that, given the redundancy, a decision needed to be made to select either herself, the new administrative assistant or another staff member in accounts, and that she had drawn the “short straw”. Further, the applicant was advised that the filing and scanning of invoices would be moved to the respondent’s head office and as a result there was insufficient work to maintain current staffing levels.

[40] The applicant was also informed that she could pack up and complete any immediate tasks and some time later was escorted from the premises.

[41] The applicant was paid five weeks in lieu of notice (one week more than her contractual entitlement) and six weeks redundancy (two weeks more than her contractual entitlement).

[42] The applicant at the time of her dismissal was paid a weekly salary of $1,057.71.

[43] The respondent has not subsequently employed any other person in the Administrative Assistant role within the NRAH project team.

[44] Based upon the evidence before the Commission, I find that the decision to employ the additional Administrative Assistant was initially justified on the basis of increasing workloads within the NRAH project. Later, despite the excess capacity from head office becoming apparent, it was decided to continue with, and complete, the recruitment process for the additional assistant because of reasons that included the alleged concerns with the applicant’s performance. That is, rather than deal with the apparent concerns in a direct and fair manner, the respondent chose to continue with and complete the new employment, in effect, to provide a replacement for the applicant.

[45] There was a form of redundancy but only in the sense that an Administrative Assistant position was taken out of the NRAH project. The applicant was however selected on the basis of apparent concerns that were not identified to her at any time and in such a manner as to in effect attempt to avoid dealing with them. In reality, the applicant was replaced by another employee.

[46] The process of consultation established by the relevant modern award 11 in the event of a redundancy was also not followed by the respondent.

[47] Since her dismissal, the applicant had undertaken extensive efforts to find new employment including registering with various labour hire and recruitment companies and applying for many positions. These endeavours have secured about four weeks of work involving wage payments of $2,413 (gross).

[48] The applicant was not in employment at the time of hearing this matter.

5. Consideration of the remedy

[49] Division 4 of Part 3-2 of the Act provides 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.

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.

Order to restore lost pay

(3) 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 cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.

(4) In determining an amount for the purposes of an order under subsection (3), FWC must take into account:

(a) 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 reinstatement; and

(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.

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.

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.

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. 12

(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.

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.”

[50] The prerequisites of ss.390(1) and (2) have been met in this case.

[51] Section 390 makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances. In this case, the parties have agreed that reinstatement is not appropriate and I accept that this is so.

[52] As a result, I need to consider whether compensation is appropriate and if so, to what extent.

[53] Section 392(2) of the Act requires me to take into account all of the circumstances of the case including the factors that are listed in paras (a) to (g). Without detracting from the overall assessment required by the Act, 13 it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of the employer’s enterprise

[54] The respondent does not contend that the nature of the compensation sought by the applicant would impact upon the viability of the business.

The length of the person’s service with the employer

[55] The applicant was employed with the respondent for a period of some 13 months. This is a consideration supportive of some caution in the assessment of compensation in this matter. This includes the assessment of remuneration that would likely have been received if not for the termination.

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

[56] This involves in part a consideration of the likely duration of the applicant’s employment in the absence of what I found to have been an unfair dismissal.

[57] Given my findings about the nature of the dismissal and the circumstances at that time, it is not reasonable or appropriate to assess that the employment relationship would only have continued for a matter of weeks. That is, I do not accept that the termination would have occurred only some few weeks later following a short consultation process and then been fairly implemented on the basis of a redundancy. I am also not persuaded that the alleged performance concerns would have led to a dismissal within a short period.

[58] I do however accept that there were issues in the working relationship between the applicant and the Commercial Manager, and the consequences of how the respondent chose to deal with those matters, which should be factored into any projection of the remuneration that the applicant would have likely received if she had not been dismissed. This includes the potential for the applicant to have eventually been dismissed or, although far less likely, resigned.

[59] The evidence reveals that the applicant did have concerns about the above matters but was also unlikely to readily leave what she considered to be a stable job.

[60] In all of the evident circumstances it is reasonable to assess the compensation in this matter on the basis that the applicant would, on the balance of probabilities, have remained in employment for a further period of some seven months.

[61] This amounts to $32,084 in likely lost remuneration. 14

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

[62] The applicant has undertaken extensive efforts to seek further employment. This has only been partially successful and there is no basis for any reduction in the level of compensation on the basis of this consideration.

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

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

[63] The applicant was paid in lieu of notice and received a redundancy (severance) payment upon her dismissal. This was paid at or immediately after the dismissal and in that sense it is not clear whether it should be considered as being earned from employment in the relevant period as contemplated by s.392(2)(e) of the Act. For convenience, I have dealt with this aspect under other relevant considerations raised by s.392(2)(g).

[64] The applicant has earned some $2,413 from employment during the relevant period. This was earned substantially within the projected period of employment and should be directly taken into account.

[65] There is only a small chance of income being received in the short period between the making of the order for compensation and the actual compensation.

Any other matter that the FWC considers relevant and the remaining statutory parameters

[66] The applicant was paid five weeks in lieu of notice and six weeks redundancy (severance) upon her dismissal. This was a total of three weeks beyond the contractual entitlements.

[67] Given my findings about the nature of the dismissal and the basis upon which I have projected the lost remuneration, it is appropriate to take the redundancy payments into account in determining this matter. In terms of the notice payments, I consider that the payments made beyond the contractual requirement should also be taken into account and deducted from the compensation amount. As my projection of lost remuneration substantially contemplates an eventual dismissal at that point, the balance of the notice payments should not be deducted.

[68] I have taken into account the projected nature of the anticipated loss of remuneration (s.392(2)(c)) and the actual amounts of alternative income (s.392(2)(e)). In that light, I do not need to make a further allowance for contingencies in this matter. 15

[69] In the earlier decision of the Commission dealing with the “re-opening” point, I allowed for the possibility that any prejudice from the delay in prosecuting the application could be taken into account in determining this matter. However, the respondent has not sought to rely upon this aspect. Further, given the basis upon which the projected employment has now been assessed, it is not appropriate to make a deduction from the compensation I have otherwise determined on this account.

[70] There is no misconduct that would need to be taken into account as provided by s.392(3) of the Act.

[71] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[72] The applicant has been in receipt of some social security payments however the respondent has conceded 16 that these should not be taken into account for present purposes.

[73] I was advised at the conclusion of the hearing in this matter that the applicant had recently made a claim for workers compensation. Although any payments that may ultimately arise from that claim would not be considered as remuneration earned from employment or work, they have traditionally been taken into account by the Commission and its predecessors as a relevant consideration. 17 Such could be relevant in light of s.392(2)(g) of the Act. However, at the time of the hearing the workers compensation claim was not determined and the respondent, appropriately in my view, did not pressed for this matter to be delayed to enable any potential payment to be taken into account.18

[74] I was subsequently advised that the applicant’s workers compensation claim had been accepted effective as at November 2012, however no details of any payments to be made, or confirmation of whether that acceptance was being contested by the respondent, have been provided. In these circumstances I have not taken any potential workers compensation payments into account.

[75] After taking into account each of the relevant considerations, I find that compensation calculated as follows is appropriate:

• The projected amount of income in the absence of dismissal $32,084



• Deduct income received since dismissal ($2,413)



• Deduct severance payments and additional notice (7 @ $1,057.71 19) ($7,404)



• Total compensation payment $22,267

[76] The amount of compensation that I have assessed is less than the maximum prescribed by s.392(5) of the Act as applied in this matter. 20 This amount is also appropriate having regard to all of the circumstances of this matter.21

6. Conclusions

[77] I find that the dismissal of Ms Miles by the respondent was unfair within the meaning of the Act.

[78] I find that reinstatement is not an appropriate remedy in this case.

[79] I find that compensation to the value of $22,267 (with deduction for taxation) is appropriate and I have ordered 22 that it be paid by the respondent within 14 days of this decision.

COMMISSIONER

Appearances:

B Deegan of Brian Deegan Lawyers (with permission) for Ms Miles.

A Manos (of Counsel)with T Kidman of Crawford Legal (with permission) for Hansen Yuncken Pty Ltd.

Hearing details:

2013

Adelaide

30 May

 1   The identity of the respondent was amended by consent during the course of these proceedings.

 2   The Commission was known as Fair Work Australia at the time of filing.

 3   Diane Miles v Hansen Yuncken Pty Ltd & Leighton Contractors Pty Ltd T/A HYLC Joint Venture[2013] FWC 1394.

 4   This was communicated by the parties and subsequently confirmed by the Commission as part of procedural orders issued on 22 May 2013.

 5   Transcript at PN1105.

 6   Applicant’s oral submissions - transcript PN2239.

 7   Respondent’s oral submissions - transcript PN2111.

 8   Respondent’s written submissions.

 9   It would be possible to draw a negative inference as contemplated in Jones v Dunkel (1959) 101 CLR 298.

 10   Transcript PN1405.

 11   Clerks Private Sector Award 2010.

 12  Note: the subsection 392(5) amount was indexed to $59,050 from 1 July 2011 - as was relevant given the timing of this application.

 13   Smith and Others v Moore Paragon Australia Ltd (2004) AIRC PR942856.

 14   I have ignored superannuation payments for all purposes of the assessment of compensation. It would have been payable on all amounts arising from the employment.

 15   See the discussion of contingencies in Bowden v Ottrey Hones Cobram and Districts Retirement Villages Inc. T/A Ottrey Lodge[2013] FWCFB 431, 4 February 2013 per Acton SDP, Smith DP and Ryan C at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, 17 April 2000 per Ross VP, Williams SDP and Gay C and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, 31 October 2001 per Williams SDP, Acton SDP and Gay C.

 16   Transcript at PN1501.

 17   See Read v Gordon Square Child Care Centre Inc T/A Gordon Square Child Care Centre[2013] FWCFB 762 at par [75].

 18   Transcript at PN2205.

 19   I have used the weekly salary rate given the absence of other explanation about the basis of these payments.

 20   The maximum compensation limit in this case would be $27,500.

 21   Smith and Others v Moore Paragon Australia Ltd AIRC PR942856 at par [32].

 22   PR537988.

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