Ms Jill Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet

[2013] FWC 4355

[2013] FWC 4355

FAIR WORK COMMISSION

DECISION

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

Ms Jill Lambert
v
Jetscape Travel Pty Ltd T/A Travelscene/ByoJet
(U2012/14467)

COMMISSIONER SPENCER BRISBANE, 25 JULY 2013

Application for unfair dismissal remedy - compensation ordered.

Background

[1] A decision was issued in this matter on 21 June 2013 in which the Fair Work Commission (the Commission), as presently constituted, found that the termination of the employment of Ms Jill Lambert (the Applicant) from Jetscape Travel Pty Ltd T/A Travelscene/ByoJet (the Respondent) was harsh, unjust or unreasonable. 1

[2] After finding that the termination of the Applicant’s employment was harsh, unjust or unreasonable there was insufficient material for the Commission to make adequate findings, as to those matters required, in consideration of an award of compensation. Directions were issued for the parties to file further submissions and evidence, as required, in relation to compensation only.

Relevant legislation

[3] The Commission has already made findings that an award of compensation is appropriate in all the circumstances. 2 The parties were directed to specifically address s.392 of the Fair Work Act 2009 (the Act) which provides:

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.

(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.

Applicant’s submissions

[4] The Applicant submitted that the Respondent’s company is a growing business that is currently operating in Australia and New Zealand.

[5] The Applicant conceded that the Applicant’s length of service with the Respondent was not “extensive” (the Applicant commenced in February 2011), but given the conduct of the Respondent in dismissing the Applicant, the Applicant submitted that length of service should not be given significant weight. The Applicant submitted that she had a reasonable expectation that her employment with the Respondent would have continued for many years.

[6] The Applicant emphasised that her age would have a negative effect on her ability to find alternative employment.

[7] The Applicant submitted that she had gone to “great lengths” to find alternative work but has been unable to obtain a new position.

[8] The Applicant stated that she had not earned any remuneration since the termination of her employment. The Applicant accepted that she had received her accrued statutory entitlements, but submitted that these should not be taken into account in any award of compensation. These entitlements also refer to an amount paid on account of alleged underpayments of minimum entitlements, during the Applicant’s employment.

[9] The Applicant referred to Annexure C to the Applicant’s affidavit sworn on 25 June 2013 being a letter from legal representatives for the Respondent to the Applicant enclosing a cheque for agreed underpayments. The letter advises that the underpayments are for “ordinary casual hourly rate and...penalty rates”. These payments do not appear to relate to any entitlement arising from the termination. It is accepted that these amounts, although received after termination, account for underpayments during the period of the Applicant’s employment and should not be taken into account in assessing compensation arising from this matter.

[10] The Applicant submitted that it is highly unlikely she will earn any remuneration between the period of any order of compensation and the actual date of compensation, based on her lack of earnings to date.

[11] The Applicant submitted that this is not a case in which misconduct should be considered and confirmed that she is not seeking any compensation for shock or distress.

[12] The Applicant submitted that an order for the maximum compensation, of 26 weeks of the Applicant’s gross annual salary, would be appropriate.

[13] The Applicant annexed to her Affidavit of 25 June 2013, screen prints of a Gmail inbox. This showed a number of emails received, purportedly in response to job applications. Sixteen of the emails are from “SEEK Service” and contain a generic description of the subject and content of those emails. There are approximately 50 to 60 emails in the screen shots.

[14] It is unclear why the Applicant was not successful in obtaining any of these alternate positions. However the Applicant submitted that the Respondent had “thwarted” her employment attempts as she had not been able to rely upon a reference from the Respondent.

Respondent’s Submissions

[15] The Respondent submitted that the Applicant had played a significant role in the circumstances that resulted in her dismissal and therefore that any award of compensation should be limited accordingly.

[16] The Respondent refuted the Applicant’s submissions regarding the Respondent’s poor conduct instead contending that the evidence merely amounted to ‘frustration and misunderstanding of how the Applicant’s perspective differed from the Respondent’s.’

[17] The Respondent submitted that their business is not large and lucrative. They submitted that, as the Applicant would have been aware, it was a small, family owned and operated business, which was growing, with considerable expenses.

[18] The Respondent submitted that a significant award of compensation will adversely affect the business, and subsequently other employee’s positions.

[19] The Respondent contended that the Applicant was employed for 18 months on a casual basis, and when offered alternative full time employment, refused it due to a preference to receive the casual wage rate and the location of the business close to her home. The Respondent submitted that this demonstrated that the Applicant was not concerned about tenure and entitlements.

[20] The Respondent contended that the Applicant preferred not to work unless it met her expectations in terms of location and wages of at least $25 per hour. It was submitted that this indicated that the Applicant had, and continues to have, limited prospects in relation to secure and long term employment.

[21] The Respondent submitted that with respect to the Applicant’s job search that she had not requested any supportive references from the Respondent.

[22] The Respondent also contended that the Applicant’s knowledge and experience of the travel industry compensate for any limitations that her age may place on her employability. However, the Respondent submitted that that the Applicant’s suitability might be affected by the Applicant’s attitude and determination to “have things her own particular way.”

[23] The Respondent submitted that the relationship with the Applicant was already strained prior to the dismissal due to the differing positions the Applicant and the Respondent held on numerous issues and that therefore the employment relationship would not have continued for a lengthy period.

[24] The Respondent also refuted the Applicant’s contention that it was due to the existence of the dispute with the Respondent, and the lack of references, that resulted in the numerous unsuccessful job applications.

[25] The Respondent contended that the Applicant’s particular requirements and her attitude impacted on her ability to secure employment. Further, the Responded stated that the Applicant failed to detail her unsuccessful job applications in any great detail.

[26] The Respondent acknowledged that the Applicant submitted that she has not earned anything since her dismissal, however contended that this was due to her disposition and approach to work.

[27] The Respondent submitted that the Applicant had been paid $4,471.64 and $1,868.76 during the intervening period and that they also paid the Applicant for the two days of work that were scheduled, but not performed. Consequently, it was submitted that the Applicant has not been entirely without income.

[28] The Applicant was entitled to these underpayments and they cannot be considered as post-dismissal earnings.

[29] The Respondent contended that the Applicant’s conduct in ultimately refusing the position they had worked hard at to meet her requirements substantially contributed to the circumstances that resulted in the dismissal and the breakdown in the relationship. The Respondent argued that this final instance was consistent with her prior profile of conduct of late refusal of trips and employment opportunities.

[30] The Respondent submitted that the Applicant should not be entitled to any more than 8.6 weeks of compensation, which had already been offered by the Respondent.

Consideration

[31] The relevant legislative provisions for consideration of the remedy are set out in s.390, s.391 and s.392. Section 390 of the Act sets out the following:

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 ...

[32] On the basis of the finding that the termination was harsh, unjust or unreasonable the appropriate remedy is now considered. In considering the remedy the approaches as set out in the relevant authorities namely Parker-Walford v PHT Holdings Pty Ltd T/A Sushi-Pro and Tabro Meat Pty Ltd v Kevin Heffernan have been followed. 3

[33] The Applicant did not seek reinstatement, given the manner of the termination and the issues between the parties. The Applicant claimed the maximum amount in compensation. As outlined at paragraphs 120 to 122 of the substantive decision, I am satisfied that the reinstatement of the Applicant is inappropriate. 4

[34] In considering the remedy, I am satisfied that the Applicant applied pursuant to s.394(3) and in accordance with s.390(3) of the Act. The Applicant was protected from unfair dismissal at the time of dismissal and the Applicant has been unfairly dismissed. I am satisfied that the reinstatement of the Applicant is not the appropriate recourse. The matter does not lend itself to reinstatement, due to the conduct of the Respondent employer, and as stated again, due to the dismissal and its unfairness, and as the Applicant does not seek reinstatement.

[35] I am satisfied that an order for the payment of compensation is appropriate in all the circumstances.

[36] Section 392 relevantly sets out:

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.

[37] An amount representing 26 weeks of the Applicant’s gross annual salary was sought in accordance with s.392(6)(a)(ii), and raised with the Respondent through submissions.

[38] In respect of the matters in s.392, I find the following.

s.392(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.

[39] Any order for compensation is an order that the Respondent pay compensation to the Applicant in lieu of reinstatement. Reinstatement in the current circumstances is not an appropriate remedy, the employment relationship is irretrievable.

s.392(2)(a) the effect of the order on the viability of the employer’s enterprise;

[40] The Respondent submitted in general terms that any significant order for compensation would have an impact on their business, as they are a small, family owned and operated business.

s.392(2)(b) the length of the person’s service with the employer;

[41] It was acknowledged by the parties that the length of service was not extensive, as the Applicant had been employed for a period of 20 months. However, the Applicant submitted that the length of employment should be given limited weight due to the conduct of the Respondent throughout the dismissal process. The Applicant’s employment was brought to an end suddenly on an unwarranted basis. Whilst both parties contributed to the lack of clarity in the employment negotiations, the Respondent had no right to deny the Applicant recourse to the employment she then held. The Respondent also placed weight on the Applicant’s acceptance of the position and was frustrated when she later resiled from this.

s.392(2)(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed;

[42] The Applicant submitted that she expected her employment with the Respondent to continue for many years. However, the Respondent submitted that the employment relationship was strained. It is unlikely that the employment relationship would have continued as expected by the Applicant prior to these further negotiations regarding the New Zealand position, given the Respondent’s frustration with the Applicant over what they considered was her late withdrawal from these lengthy negotiations. It is unlikely that the employment would have continued for more than five months on the basis of the issues between the parties.

[43] The Applicant had withdrawn at a late stage from the Respondent’s prior job negotiations and offers of travel. It was these circumstances that had clearly motivated the Respondent to place the provision in the offer of employment to remove the existing employment in circumstances where the Applicant withdrew. It also indicated the Respondent’s lack of patience with and confidence in the Applicant. Further, the Respondent indicated that whilst the Applicant had accepted the employment they had continued to resolve the Applicant’s concerns and thought they had. The Applicant herself did not prefer reinstatement. On balance, these issues, together with all the other matters referred to, have been taken into account in assessing the length of the ongoing employment relationship and the relevant remedy quantum.

s.392(2)(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal;

[44] The Applicant has submitted that she has unsuccessfully applied for numerous jobs after the cessation of her employment by the Respondent and provided screenshots of emails concerning a number of job applications.

[45] The Applicant has also contended that her age of 61 years has impacted on her ability to secure further employment.

[46] On the material provided, and taking into account the circumstances of the Applicant, it is concluded that she has actively and genuinely endeavoured to mitigate the loss and to secure alternative employment without success and therefore no earnings are deducted on this basis.

s.392(2)(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;

[47] The Applicant has submitted that she had not received any remuneration since the termination of her employment. Both parties acknowledge that there has been some payment of compensation in relation to underpayment matters. These payments were, however, for remuneration owed during the period of service and do not therefore represent legitimate deductions.

s.392(2)(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;

[48] Based on the prior submissions regarding earnings, it is unlikely that any amount would be earned by the Applicant in the period and therefore no deduction has been made.

s.392(2)(g) any other matter that the FWC considers relevant

[49] The Applicant submitted that the nature of the case was one where the maximum amount should be awarded.

[50] The Applicant showed a significant interest in the New Zealand position and continued the discussions with the employer to rectify what she saw as deficiencies in the information she was provided. Given the new position required the Applicant to relocate to New Zealand; she was entitled to receive written information about the role. Part of the frustration of both parties was based on the lack of a specific outcome being agreed to and being effected in a timely manner. However, the Applicant clearly required written confirmation of the role and entitlements. When the Applicant considered she was receiving inconsistent and unreliable responses to her enquiries, she withdrew her interest in the role.

[51] The Respondent was particularly frustrated at this late withdrawal and acted on the false premise that such withdrawal would let them end her employment. The Applicant’s refusal of the offer cannot be interpreted as misconduct nor did it provide a valid reason to end the relationship.

[52] Given the nature of the failed negotiations for the New Zealand role, the disruption caused by the late refusal and both parties’ associated frustration, this would have placed a real strain on an ongoing employment relationship. However, there were no alternative performance issues; apart from the Respondent noting that the Applicant was known for such conduct in the past.

[53] Also relevant is that the Applicant had significant travel industry experience, which was relevant to the Respondent’s work. In addition, the Applicant worked many weekends and a number of evening shifts for the Respondent. The Applicant’s length of service was not significant and this has been taken into account. Based on the circumstances that emerged between the parties it is unlikely that the employment relationship would have extended beyond the five months.

s.392(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

[54] Both parties submitted that there were no allegations of misconduct during the employment relationship.

s.392(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

[55] It is confirmed that the award of compensation does not include any component for shock, distress or humiliation.

Conclusion

[56] In the absence of post dismissal earnings no deduction has been made for such. No deduction has been made for misconduct. Given the Applicant’s age and to date her limited ability to secure alternative employment, no further amount has been deducted for contingencies. In addition, that the termination was effected without a valid reason has been taken into account in assessing the relevant amount of five months.

[57] Taking into account all of the matters a final Order for compensation will issue requiring the Respondent to pay to the Applicant (within 21 days of the date of the Order) an amount equivalent to five months of the Applicant’s ordinary gross earnings to be taxed according to law.

[58] The Applicant is to confirm the exact dollar amount of the equivalent ordinary time earnings, commensurate with the payment of the Order, by 4.00pm Monday, 29 July 2013. The Order will then issue.

COMMISSIONER

 1   Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet [2013] FWC 2263.

 2   Ibid at [120]-[122].

 3   Parker-Walford v PHT Holdings Pty Ltd T/A Sushi-Pro[2013] FWCFB 2191; Tabro Meat Pty Ltd v Kevin Heffernan [2011] FWAFB 1080.

 4   Lambert v Jetscape Travel Pty Ltd T/A Travelscene/ByoJet [2013] FWC 2263 at [120]-[122].

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