Ms Kylie Thomas v Tugun Surf Life Saving and Supporters Club Inc T/A Tugun Surf Life Saving Club

[2015] FWC 1864

[2015] FWC 1864

FAIR WORK COMMISSION

DECISION

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

Ms Kylie Thomas
v
Tugun Surf Life Saving and Supporters Club Inc T/A Tugun Surf Life Saving Club
(U2014/13153)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 25 MARCH 2015

Application for relief from unfair dismissal - whether conduct warranted dismissal - remedy - calculation of amount to be paid

[1] This decision concerns an application by Ms Kylie Thomas, who is seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”) in relation to the termination of her employment by the Tugan Surf Life Saving and Supporter Club Inc T/A Tugan Surf Life Saving Club (“the Club”).

[2] Ms Thomas was employed at the club in a casual position since 19 October 2003 until the date of her dismissal, 4 September 2014 - a period of some 11 years.

[3] From September 2011 Ms Thomas performed duties of a supervisor and performed shift duty manager roles.

[4] Ms Thomas contends that her employment with the club was largely uneventful until the appointment of Mr Michael Laverde as the Food and Beverage Manager.

[5] Ms Thomas had had prior interactions with Mr Laverde at another club at which Ms Thomas was a financial member. Ms Thomas indicated that she had made a written complaint against Mr Laverde to the management of that club (where Mr Laverde was employed at the time). It appears that Mr Laverde may have made a complaint about Ms Thomas’ conduct as well.

[6] Ms Thomas came to contend that Mr Laverde harboured a personal vendetta against both herself and her daughter, Ms Taylor Carter (who was also employed at the Club), for reasons of Ms Thomas’ prior complaint.

[7] Prior to Mr Laverde’s appointment, Mr Thomas had conveyed concerns to the Club committee of the prior difficulties in her relationship with Mr Laverde.

[8] But Mr Thomas’ written materials as filed in relation to this matter, and her viva voce evidence, suggest that her initial impression of Mr Laverde’s performance was positive and that she conveyed this to the committee itself.

[9] This perception of Mr Laverde did not last for very long, however.

[10] Some five days after he commenced employment, Ms Thomas contends that Mr Laverde started ‘harassing’ and ‘targeting’ her daughter (Ms Carter) at work. She claimed that this included verbal and written warnings in relation to performance issues arising from:

“[...] things we have not been told have changed or for something that all staff do because of being understaffed, as well is taking 15 hours of her next roster seven of those just blatantly given to another staff member, which he had no explanation for other than to say you make me feel uncomfortable because of your mother in a private meeting, where a warning was given without a witness and with my name being mentioned on many occasions.” (sic)

[11] Ms Thomas claimed that on 4 September 2014 her daughter came home crying because of a warning she had been given by Mr Laverde.

[12] It appears from Ms Thomas’ evidence that her daughter had been subject to a verbal warning from Mr Laverde at a point earlier in the week.

[13] Ms Thomas in her written materials claimed that the substance of this verbal warning concerned Mr Laverde’s claim that the coffee machine had been cleaned and turned off too early prior to the end of the shift. It appears from Ms Thomas’ claims that her daughter had no awareness of the changed requirement in relation to the time at which the coffee machine was to be turned off. Ms Thomas therefore contended that her daughter had been subject to an unfair warning in relation to performance when there had been no notification of a change in procedure.

[14] Ms Thomas would come to claim that Mr Laverde’s unfair conduct was vividly illustrated by him subsequently telling Mr Thomas that he would communicate the changes in coffee machine closing procedure to all staff three days in the future.

[15] Following this verbal warning, a written warning was also given to Ms Thomas’ daughter (on 4 September 2014). This written warning was said by Ms Thomas to have been:

“[i]n regards to stock been signed for but some boxes were not present and couldn’t be found [...]”

[16] In respect of the written warning about missing stock, Ms Thomas said that “this also points back to staff knowledge of memos and availability where staff had not been made aware of any changes to procedures within the club.” (sic)

[17] Ms Thomas explained that her daughter had refused to sign the performance warning because she considered it to have no reasonable foundation (for reasons that it arose from changed procedures about which she - Ms Carter - was unaware).

[18] It was with this background of events affecting her daughter that Ms Thomas attended work on 4 September 2014.

[19] Upon arriving at work that day just before 4PM, Ms Thomas admitted to being “pretty upset” about the conduct to which her daughter had been subjected by Mr Laverde.

[20] After commencing work, Ms Thomas stated that she said “hello” to Mr Laverde and in reply, it appears, Mr Laverde “asked to see [her] in his office”.

[21] Ms Thomas explained that she informed Mr Laverde in response to his request that:

“[...] I was too upset with him at the moment because he was being unfair and unreasonable to my daughter.”

[22] Ms Thomas claimed that Mr Laverde denied the allegation, again requested that she attend his office and indicated that should she not do so:

“I would be sent home from my shift.”

[23] Ms Thomas replied that she would not comply with his direction and that she was going to attend to her duties instead. Ms Thomas proceeded to walk upstairs to the bar and claims that Mr Laverde followed her and again requested that she meet with him in his office.

[24] Ms Thomas conceded that at this time she was in an emotional state and crying. Ms Thomas stated that she could not communicate with Mr Laverde, walked away from him when he made the request, and “just want[ed] to work.”

[25] Ms Thomas’ written materials and statements do not suggest that there was any interaction with Mr Laverde at this time other than Mr Thomas being in receipt of Mr Laverde’s direction.

[26] That aside, according to Ms Thomas, Mr Laverde continued to follow her up to the bar as she walked away and said:

“If I did not go to his office I was to leave the premises [...]”

[27] Ms Thomas appears at least to have responded by stating that:

“[N]o I am working.”

[28] Ms Thomas claims she went on to state that she would meet with Mr Laverde but only if a committee member was present. Ms Thomas claims that Mr Laverde replied by saying “that’s ridiculous” and indicating to her that the committee was aware of the difficulties in their relationship and that if she did not go to his office as directed she would have to leave the premises.

[29] Ms Thomas said that in reply to Mr Laverde she said words to the effect of:

“[i] is not ridiculous [that] I want a committee member present.”

[30] Mr Laverde was then said to have replied himself by stating:

“[W]ell you are fired then.”

[31] Ms Thomas claimed that she replied by stating:

“[Y]ou cannot fire me.”

[32] Mr Laverde was said to have replied, not unexpectedly:

“[Y]es I can.”

[33] Ms Thomas claims that Mr Laverde then “stormed off”.

[34] Ms Thomas claimed that at this stage she was “crying a lot”.

[35] After some further exchanges concerning whether a committee member was to attend, Ms Thomas claimed she waited (outside the Club entrance) for about 40 minutes before going home.

[36] On Friday 5 September 2014 Ms Thomas received correspondence from the Club in the following relevant terms:

Dear Kylie

The [Club] wish to advise that you are requested to attend a meeting with Michael Laverde, Ian Butler and David Geddy on Saturday 6th September 2014 at 8:30 AM at the Club.

This meeting is to discuss your recent behaviour towards management and defamation of a manager and the club.

You are welcome to bring a support person with you but it cannot be a solicitor or lawyer.

Michael Laverde dismissed you of your shift yesterday because of this conduct. This meeting has been scheduled before your next shift for your ease. (sic)

[37] The correspondence was signed by Ms Cheryl Duncanson, “Human Resources”.

[38] On Tuesday 9 September 2014 Ms Thomas was in receipt of further correspondence from the Club - again from Ms Duncanson -which read relevantly as follows:

The [Club] wish to advise that you are requested to attend a meeting with Michael Laverde and Cheryl Duncanson on Thursday, 11 September 2014 at 8:30 AM at the club. This letter follows the previous meeting request which you failed to attend.

This meeting is to discuss recent behaviour towards management and defamation of a manager and the club.

You are welcome to bring a support person with you but it cannot be a solicitor or lawyer.

As mentioned in a previous letter, Michael Laverde only dismissed you of your shift last Thursday because of this conduct. This meeting will now determine the next course of action. (sic)

[39] On 17 September 2014, Ms Thomas was in receipt of further correspondence from the Club which read relevantly as follows:

I refer to the two letters that were emailed to you requesting your attendance at the [Club] on 06.09.2014 and 11.09.2014. It was noted that you failed to attend the meetings on both occasions.

The decision has been decided to terminate your employment for what is viewed as misconduct from 12.09.2014.

[40] The correspondence went on to detail the methods of discharging various accrued entitlements, including outstanding long service leave.

[41] Mr Laverde’s evidence was to the effect that he had not treated Ms Thomas’ daughter unfairly. He claimed that the warning given to Ms Carter on 4 September 2014 related to a failure to check stock against the invoice received. In this regard he explained that all staff members including Ms Carter had attended a staff meeting on 27 March 2014 at which it had been explained that it was necessary for staff:

“to ensure all deliveries are checked and signed off correctly and go where they belong [and are] not left in the stairwell/reception.”

[42] Mr Laverde conceded that the staff attendance sheet indicated that Ms Carter was not in attendance at that particular staff meeting.

[43] A file note prepared by Mr Laverde on 4 September 2014 - the day of the pivotal interaction between Ms Thomas and Mr Laverde - set out the sequence of events as follows:

Approximately 3:55 PM Kylie entered the club, I was sitting in reception [...] doing the new menu, I asked Kylie to come into my office for a chat, she replied “I have nothing to say to you”, I asked Kylie again to come into my office, she replied “I have nothing to say to you, you have treated my daughter like crap”, so I asked again, Kylie then ignored me and walked up the stairs.

I followed her up the stairs by this time she was already behind the bar, I asked again “come down and have a talk about this situation”, Kylie said “no I will not be talking to you without a committee member present”, I said “either go downstairs and talk about this now or you can go home,” Kylie said “you can’t make me, I work here, try and get me out,” I then said “okay go your Fired no your dismissed leave the workplace now.”

I walked downstairs and called Dave Geddy, I informed him of the situation, he said he would come down and talk to her.

I then proceeded to the bar and notified Kylie that Dave was on his way, and she is to leave the club until Dave got here, at this time Kylie started walking down the stairs saying “I will see him outside”.

Approximately 30 min later Dave arrived, but Kylie had left the premises altogether. (sic)

[44] In his viva voce evidence, Mr Laverde conceded that he was angry at the time he issued Ms Thomas with his direction above.

Consideration

[45] Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable. Section 387 is 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; 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.

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)

[46] The Club maintained that it dismissed Ms Thomas for reason that she failed to attend the meetings arranged by way of the post-employment correspondence (which I have set out above). But on the evidence available, the dismissal occurred at an earlier point in time by way of the direction given by Mr Laverde.

[47] Mr Laverde’s own evidence demonstrates that he conveyed in unambiguous terms to Ms Thomas on 4 September 2014 that she was dismissed from her employment. Mr Laverde conceded as much in his viva voce evidence.

[48] The language used by Mr Laverde does not suggest that Ms Thomas should have reasonably appreciated that he was standing her down, in effect, from a single shift only. The tenor of the subsequent correspondence from the Club appears premised on this presumption.

[49] It was reasonable in the circumstances for Ms Thomas to have considered that her employment with the Club had come to an end at the direction of Mr Laverde on 4 September 2014.

[50] The subsequent correspondence directed to Ms Thomas by the Club was not relevant for purposes of establishing a valid reason for her dismissal: the horse had bolted.

[51] I do not consider that the Club had a valid reason to dismiss Ms Thomas.

[52] A single altercation occurred.

[53] Admittedly, Ms Thomas’ conduct was hardly conducive to constructive and cooperative relationships in the workplace. If Ms Thomas had exhibited greater self-control she may have been able to identify the reasonable basis to Mr Laverde’s concerns in relation to her daughter’s performance - which were far from an extreme end of the disciplinary spectrum in any event. But they were concerns on Ms Thomas’ part that were exaggerated - it would reasonably appear - by her underlying anxieties about Mr Laverde given their previous history.

[54] In the end, Ms Thomas refused to comply with a reasonable direction by her employer to meet and discuss an issue which self-evidently was compromising cooperative and productive relations in the workplace.

[55] Equally however, Mr Laverde as a manager (possessing what he confirmed was the power to hire and fire) should have appraised the situation in which he found himself with Ms Thomas more adeptly. The escalating responses and counter responses - which could have been readily mediated, such as a mediation involving a local third party such as the Club’s HR officer - reached a point at which Ms Thomas was expressly dismissed from her employment for reasons of refusing to meet and discuss the relevant issue with Mr Laverde.

[56] Once Mr Laverde was alerted by Ms Thomas that her conduct was motivated by her concerns about her daughter’s well-being, Mr Laverde could have managed the situation other than by continuing to confront Ms Thomas on what was self-evidently a particularly emotive personal issue. I add that Ms Thomas did not reaction at the time to the extent that she abandoned her shift or refused to perform her regular duties. Ms Thomas only indicated to Mr Laverde that she did not wish to meet with him and only wanted to be left alone at this time to perform her duties.

[57] As I said above, I have concerns about Ms Thomas’ impulsive conduct on 4 September 2014, and her inability to look beyond her emotional situation in the workplace. In the end, however, the extent and context for her refusal to obey Mr Laverde’s direction was not so grave as to warrant the dismissal. The exchanges between Ms Thomas and Mr Laverde were not aggressive or abusive (though they were emotionally charged) and there was no inappropriate language used by either party.

[58] It would have been more reasonable, in the context, for Mr Laverde to have stood Ms Thomas down and to have conducted - through the agency of the HR officer - a meeting at a future point to dispel the issues that had arisen.

[59] It appears to be the case that Mr Laverde may have intended to adopt such an approach. The intent was not realised. Mr Laverde had clearly communicated to Ms Thomas on 4 September 2014 that she had been dismissed. No mention was made of being dismissed “for the shift only.” His contemporaneous note makes no reference to such an intention.

[60] I pressed Mr Laverde during cross examination about this particular matter at the hearing:

Mr Laverde: “Well, I just said, yes, you’re fired. And then I thought about it and said, no, you’re dismissed.”

Senior Deputy President: “What’s the difference?”

Mr Laverde: “Dismissed means you’re dismissed from your shift. [...] I said it out of anger, yes, you’re fired, no, you’re dismissed.”

Senior Deputy President: “How was Ms Thomas to know the difference between being told you’re fired and you’re dismissed?”

Mr Laverde: “Well, I suppose she doesn’t.”

[61] Ms Thomas waited outside the Club for a reasonable interval for a Club committee member to arrive (as Mr Laverde had suggested one would), but none presented (after 30 minutes on Mr Laverde’s evidence) and Ms Thomas went home.

[62] Though as a long-standing employee Ms Thomas may have welcomed the opportunity to enter into further discussions with the Club about her employment after the incident on 4 September 2014, there was no necessity for her to continue to engage in the subsequent correspondence with the Club’s HR personnel, who appear to have presumed there had been no termination of Ms Thomas’ employment. It was enough on the facts as established that Ms Thomas rightly believed she had been dismissed from her employment.

[63] The evidence, then, is sufficient to demonstrate that Ms Thomas’ dismissal took effect upon Mr Laverde communicating the fact to Ms Thomas on 4 September 2014. While Ms Thomas’ conduct that day left a great deal to be desired, it did not in my view warrant her dismissal in its own right (let alone after a lengthy period of uncontentious employment, which is a matter to which I will turn below in respect of s.387(h) of the Act). In all, I consider that the gravity of Ms Thomas’ conduct on 4 September 2014 was not sufficient to justify her dismissal.

Whether the person was notified of that reason

[64] Ms Thomas’ dismissal arose from the circumstances of the altercation with Mr Laverde. There was no opportunity in such a context for the advance communication of the reason for the dismissal. It is to be noted however, that the nature of the altercation and Ms Thomas’ reluctance to engage directly with Mr Laverde made conventional informational exchanges effectively impossible.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[65] The dismissal was initiated by Mr Laverde for reasons of alleged misconduct. Ms Thomas was not given any opportunity to respond to the reason for the dismissal. The extent of the Club’s failure to discharge procedural fairness in this respect is to be balanced ultimately by Ms Thomas’ refusal to interact with her manager at the time of the incident in question.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[66] The circumstances of this matter did not attract a consideration of whether or not there was any unreasonable refusal by the Club to allow Ms Thomas to have a support person in relation to the discussions - or rather exchanges - that led to her dismissal.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[67] Ms Thomas was not dismissed for reasons of unsatisfactory performance. She was dismissed by Mr Laverde for misconduct - insofar as she failed to obey a reasonable instruction by him to attend at his office to discuss workplace issues.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

[68] There was no argument put to me that the size of the employer’s enterprise affected the procedures effecting the dismissal, and none would reasonably appear to arise. But I do observe that the Club, like other clubs, has only a very small number of full time employees who are supported by a larger contingent of casuals (many of whom have regularly rostered hours).

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

[69] The Club did not maintain any specialised or trained in-house human resource specialists. But in the end, regardless of whether those resources had been available, Ms Thomas’ employment came to an end on 4 September 2014 as a result of an angry exchange between Mr Laverde and Ms Thomas. Any involvement of the human resources personnel would have been marginal to that critical exchange, and what motivated it.

Any other matters that the FWC considers relevant

[70] Ms Thomas was a long-standing employee of the Club (with 11 years of employment) and because of this one incident her employment has been lost. I have set out above that I think there were reasonably other options or avenues available to manage the issues that had arisen other than dismissal.

[71] Further, the incident that occurred on 4 September 2014 was not of such a kind that it in some manner was fatal to the employment relationship. While the exchange as recorded exhibited some measure of emotional tension (Ms Thomas was “crying” and Mr Laverde was “angry”), it had no abusive or threatening or aggressive elements and must be characterised in that light.

[72] Against that, however, I again emphasise that Ms Thomas conducted herself in a particularly impulsive manner on 4 September 2014 and did not make the effort to apprise herself of the views of the employer, or measure her emotional response to the perceived circumstances.

Conclusion

[73] When all the circumstances are considered, I conclude that Ms Thomas was harshly unjustly or unreasonably dismissed from her employment at the Club. Because I have so found, I will now turn to consider the remedy that may be available to Ms Thomas.

REMEDY

[74] 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.

[75] Ms Thomas was 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 Ms Thomas can be reinstated.

[76] 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.

[77] I would neither reinstate (by re-appointing) Ms Thomas to her former position or order that she be appointed to another equivalent position with the Club, or any associated entity of the Club, on the same or any other site.

[78] This is because Ms Thomas herself does not request reinstatement or otherwise.

[79] 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.

[80] Because of my findings in this regard I 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

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

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

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

(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

(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

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

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

[81] It does not appear to me that any order that I might make would affect the viability of the Club, given my reasonable inferences about its resources.

The length of the person’s service with the employer

[82] Mr Thomas had been employed for some 11 years at the Club. In so far as it is a particularly relevant factor in relation to deciding the amount of any compensation that might be ordered, it is a positive factor in respect of making an order for an amount of compensation.

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

[83] The determination of the remuneration that Ms Thomas would have received but for the dismissal is contingent on the period of time that I determine that she would have continued to work for the Club (but for the dismissal). This necessarily is a speculative evaluation informed by the context of the evidence to which I have been exposed.

[84] In my view, Ms Thomas’ evidence over the course of the hearing disclosed an inordinately negative view of her manager, Mr Laverde. I do not consider that the relationship would have been sustained for a particularly lengthy period of time as other issues would have arisen. Ms Thomas all too rapidly formed a view that Mr Laverde was acting in a discriminatory and unfair manner towards herself and her daughter (as a result of the past interactions between Ms Thomas and Mr Laverde). Ms Thomas also exhibited no wish to be reinstated to her previous position either, which was indicative of her continued view of Mr Laverde, who is now the Club Manager.

[85] I think that Ms Thomas’ view of Mr Laverde had fractured her relationship with the Club as a whole after a long period of employment.

[86] In my view when I consider all the circumstances of the evidence I would best conclude that the Thomas would have remained an employee for a further 16 weeks, at the outside.

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

[87] Ms Thomas has been active in mitigating her loss as is evidenced from her efforts to obtain employment (which are referred to below). This finding is supportive of an order for compensation being made, though it may have implications for the amount of any compensation that may be paid to Ms Thomas.

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

[88] Ms Thomas earned on average $791.43 per week (gross) whilst employed at the Club. This is an average derived from her last 14 full weeks of work (the payslips for which were provided by Ms Thomas). It is the most reasonable perspective I can draw upon to ascertain her rate of remuneration prior to her dismissal.

[89] Upon being dismissed, Ms Thomas was employed at the Palm Beach Currumbin Sports Club between 8 September 2014 and 30 November 2014.

[90] Ms Thomas’ earnings over that period amounted to $4714.01 (gross). This aggregated amount was derived from payslips provided by Ms Thomas.

[91] Between 3 December 2014 and 10 March 2015, Ms Thomas earned $13,570.26 (gross) from employment at the Coolangatta Surf Life Saving Supporters Club Inc.

[92] Ms Thomas’ total remuneration earned between the time of her dismissal and the hearing of her application amounted to $18,284.27 (gross). Neither Ms Thomas nor the Club challenged these calculations when provided an opportunity to do so.

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

[93] This is not a relevant consideration in the current context.

Any other matter that the FWC considers relevant.

[94] There are no other matters that I consider relevant, other than I note that I have not in the current context determined that the amount that I order to be paid ought to be discounted by contingencies. Given the duration of the anticipated period of employment it does not appear to me that contingencies as they are described would have reduced the remuneration that Ms Thomas would otherwise have earned.

[95] 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.

[96] The decision taken by Mr Laverde to dismiss Ms Thomas arose exclusively from the misconduct of Ms Thomas in refusing to cooperate in a discussion to resolve the issues which were of concern to her. I have concluded that Mr Laverde exercised a disciplinary sanction out of proportion to be conduct exhibited by Ms Thomas. But it was Ms Thomas who was responsible for instigating the antagonistic and confrontational circumstances that led to her dismissal.

[97] In my view I should discount the compensation that I would otherwise order the Club to pay by 50% because of Ms Thomas’ misconduct. I therefore deduct 8 weeks from the remuneration that Ms Thomas would have earned but for her dismissal (which leaves 8 weeks remuneration remaining).

[98] 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.

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

[100] 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.

[101] 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.

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

[103] 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.

[104] The Club has made no application to pay any amount I may order to be paid as compensation in instalments. Notwithstanding that, I will indicate that the club is at liberty to request that the order for compensation that I will make be discharged by instalments. Any such application must be made within three calendar days of the issuance of the order.

CONCLUSION IN RELATION TO REMEDY

[105] The amount to be paid to Ms Thomas in lieu of reinstatement is an amount equivalent to 8 weeks salary, with the parties responsible for the application of relevant taxation law. The precise amount to be paid is calculated in the following manner.

[106] Ms Thomas’ projected earnings for the period of employment of anticipated employment at the Tugan Surf Life Saving and Supporters Club is the sum of $791.43 x 8 weeks. That sum is $6,331.44.

[107] For the eight week period of Ms Thomas’ anticipated period of employment following her dismissal (which is the period 4 September 2014 to 30 October 2014, Ms Thomas’ earned remuneration was $2149.51 (at the Palm Beach Currumbin Sports Club). In calculating this amount I have split Ms Thomas’ earnings ($395.99) in a part week (ending 3 November 2014) and rounded them off to $200.00.

[108] The loss incurred by Ms Thomas is $6,331.44 minus $2149.51, which amounts to $4,181.93 (gross).

[109] Therefore, by order issued along with this decision, I order that the Club pay to Ms Thomas the sum of $4,181.93 gross (subject to applicable taxation) to her usual bank account within 14 calendar days of the date of the order.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms K. Thomas, Applicant

Mr M. Laverde, of the Respondent

Hearing details:

Brisbane

2015

13 March

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