Ms Maria Ferla v C&v Engineering Co Pty Ltd T/A C&v Engineering Services Pty Ltd

[2017] FWC 989

[2017] FWC 989

FAIR WORK COMMISSION

DECISION

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

Ms Maria Ferla
v
C&V Engineering Co Pty Ltd T/A C&V Engineering Services Pty Ltd
(U2016/8774)

COMMISSIONER RIORDAN SYDNEY, 12 APRIL 2017

Application for relief from unfair dismissal.

[1] This decision relates to an application by Ms Maria Ferla seeking an unfair dismissal remedy against her former employer, C & V Engineering Co Pty Ltd t/a C & V Engineering Services Pty Ltd (CVES).

[2] Leave was granted in accordance with section 596(2) of the Fair Work Act, 2009 (the Act) to allow Mr H. Grace of Counsel to appear for Ms Ferla. Mr N. Arends from the Master Builders Association of NSW represented CVES.

[3] Ms Ferla attested to a witness statement and gave evidence on her own behalf. CVES relied upon witness statements and evidence from Mr Mario Pizzolato, the Managing Director and General Manager of CVES, his sister Ms Antonella Pizzolato who is the Financial Controller of CVES and Mr Jihad Nassour, who is employed by CVES as an Estimator/Project Manager.

[4] Ms Ferla had been employed as a Personal Assistant at CVES for 8.5 years. Relevantly, Ms Ferla is the 55 years old sister of Mr & Ms Pizzolato’s mother and is Mr & Ms Pizzolato’s Aunty.

[5] Following the conclusion of the proceedings, Mr Pizzolato sent a further 2 page submission on 15 February 2017 directly to my Chambers. I have not read this submission. I remain unaware of its content.

Background

[6] Ms Ferla worked full time from October 2007 until June 2016. In June 2016, Ms Ferla elected to go part time so that she could take on additional caring responsibilities for her elderly mother following the passing of her sister, Mrs Pizzolato.

[7] On 20 July 2016, Ms Ferla was at work. At approximately 12.45pm, Ms Ferla heard an argument commence between Mr Pizzolato and Ms Pizzolato from the other end of the office. Ms Ferla returned to her work area at the reception area at the front of the building, which was the location of the heated argument between Mr Pizzolato and Ms Pizzolato. It is uncontested that Mr Pizzolato threw a bottle of hand sanitizer at Ms Pizzolato during the argument. Ms Ferla testified that Mr Pizzolato also threw an A4 sign piece of thin steel at Ms Pizzolato. This allegation was denied by both Mr and Ms Pizzolato. Mr Pizzolato alleges that Ms Ferla began hitting him with approximately 1 – 1 ½ cm of paper whilst telling him to stop arguing. Ms Ferla denies striking Mr Pizzolato. Relevantly, Mr Pizzolato admitted that he was not hurt nor did he feel intimidated by the altercation with Ms Ferla. Ms Pizzolato testified that she witnessed Ms Ferla hit Mr Pizzolato with the bundle of papers.

[8] It is alleged Mr Pizzolato then turned around and confronted Ms Ferla about hitting him. Mr Pizzolato claims that he subsequently guided Ms Ferla back into the corridor and closed the door. Ms Ferla claims that she was pushed back through the doorway into the corridor and that she fell over. Ms Ferla then re-entered the office area via the kitchen and sat down at her workstation, which was situated between Ms Pizzolato’s workstation and where Mr Pizzolato was standing and continuing to argue with Ms Pizzolato.

[9] Mr Pizzolato testified that the following exchange then took place between himself and Ms Ferla:

“31. The conversation between my sister and I continued. A short while later Maria (MLF) entered the front office using the second entry through the kitchen. Maria sat down at the desk and started verbally abusing me (MP) and starting accusing me of hitting her, I recall words to the following effect being exchanged;

MLF said “why did you hit me”

MP said “excuse me, are you nuts? I didn’t hit you”

MLF said “Yes you hit me”

MP said “You really are crazy, I did not hit you. I moved you through the door way and closed the door behind you”

MLF said “Yes you pushed me”

MP said “see I didn’t hit you. You know what; I’ve had enough of you. I won’t be accused of hitting you, so get your stuff and get the fuck out of here.”

MLF said “No I’m not leaving”

MP said “I don’t care, get out. You were striking me, accusing me of hitting you and getting involved in matters which don’t concern you. Get the fuck out.”

MLF said “No I’m NOT leaving. I’m staying.”

MP said “You no longer work here, Leave NOW.”

 1

[10] Mr Pizzolato then attempted to remove Ms Ferla from her chair. I accept the evidence that he attempted to pull Ms Ferla out of her chair by her hands. Ms Ferla resisted. At some point, Mr Pizzolato lost his grip of Ms Ferla and she fell backwards onto the floor.

[11] Ms Pizzolato had a bouncer or mini trampoline in the office. Ms Ferla either tripped over this device when Mr Pizzolato let go of her or when she was trying to regain her balance. It is obvious that Ms Ferla hit the exercise equipment on her way to the floor.

[12] Ms Ferla suffered injuries to her shoulder and lower back as a result of her interaction with Mr Pizzolato. Ms Ferla sought medical attention from her family doctor that afternoon.

Statutory Provisions

[13] The relevant sections of the Fair Work Act, 2009 (the Act) in relation to this matter are:

Section 381

Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned.

Section 382
When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:


(a)  the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b)  one or more of the following apply:

(i)  a modern award covers the person;

 (ii)  an enterprise agreement applies to the person in relation to the employment;

(iii)  the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Section 385
What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a)  the person has been dismissed; and

(b)  the dismissal was harsh, unjust or unreasonable; and

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

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

Section 387
Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a)  whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)  whether the person was notified of that reason; and
(c)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)  any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

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

(f)  the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)  the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)  any other matters that the FWC considers relevant.

Section 388
The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person's dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person's dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person's employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

Small Business Fair Dismissal Code

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.

Consideration

[14] I have taken into account all of the evidence and submissions of the parties. The fact that an issue is not mentioned in this decision does not mean that it has not been taken into account.

[15] There is no conflict that CVES is a small business with only 4 employees – all of whom gave evidence in this matter.

[16] CVES argued that Ms Ferla was terminated for serious misconduct on the basis that she had hit Mr Pizzolato with approximately 1cm of loose papers as well as Ms Ferla’s failure to follow a lawful direction and leave the premises of CVES after she had been terminated.

[17] I have taken into account that Ms Ferla intervened in what she thought was a serious and possibly violent argument between Mr Pizzolato and Ms Pizzolato in an attempt to bring the argument to a conclusion.

[18] I have taken into account that Mr Pizzolato was quite shocked that he had been struck on the shoulder by Ms Ferla with the documents that she was carrying.

[19] I have taken into account that Mr Pizzolato was not hurt or intimidated by the action of Ms Ferla in striking him.

[20] I have taken into account that Mr Pizzolato grabbed Ms Ferla by the hands in an attempt to get her to stand up from her chair.

[21] I have taken into account that Ms Ferla fell over a miniature trampoline and suffered injury and bruising to her arm, leg and back.

[22] I have taken into account that Mr and Ms Pizzolato are siblings and that Ms Ferla is their Aunty.

[23] I have taken into account that Ms Ferla complained to the NSW Police that Mr Pizzolato had assaulted her. I note that this action has now been settled to the satisfaction of both parties.

[24] I have taken into account that Ms Ferla threatened Mr Pizzolato that she would “make him pay” for the way in which she had been treated.

Determination

[25] I find that Mr Pizzolato, Ms Pizzolato and Ms Ferla are all witnesses with a selective memory of the events that transpired on 20 July 2016. It was evident that the witness statements to which they attested and the evidence which they have given were tainted and self-serving.

[26] As the CEO of a small business, Mr Pizzolato could have dismissed Ms Ferla for serious misconduct if she had been involved in “theft, fraud, violence or a serious breach of OH&S.” 2 Ms Ferla witnessed Mr Pizzolato throwing a bottle of hand sanitizer at his sister. I regard this behaviour of Mr Pizzolato as a serious breach of OH&S. Ms Ferla tried to intervene to stop the heated argument. I accept that Ms Ferla then struck Mr Pizzolato on the shoulder in a non-threatening manner with a small bundle of papers. I do not regard the actions of Ms Ferla as being an act of violence.

[27] The Collins Dictionary defines the term violence to mean;

“noun

1) the exercise or an instance of physical force, usually effecting or intended to effect injuries, destruction, etc

2) powerful, untamed or devastating force

4) an unjust, unwarranted, or unlawful display of force, especially such as tends to overawe or intimidate.”

[28] During the argument with Ms Pizzolato, Mr Pizzolato pushed Ms Ferla out of a doorway and closed the door. I do not accept that Mr Pizzolato simply guided Ms Ferla through the doorway. When Ms Ferla returned to her work area through an alternate entrance and sat down at her desk, Mr Pizzolato grabbed Ms Ferla by the hands and pulled her out of her chair. Ms Ferla was resisting Mr Pizzolato by pulling away from him. Mr Pizzolato then lost his grip of Ms Ferla and she fell backwards over the miniature trampoline.

[29] I find the actions of Mr Pizzolato to be contrary to that of a model employer. Every employer has obligations under the relevant Work, Health and Safety legislation. No employer has the right to physically handle an employee, whether it is by pushing them through a doorway or by pulling them out of a chair.

[30] I note that Mr Pizzolato did not report the actions of Ms Ferla striking him to the NSW Police.

[31] For the reasons mentioned above, I find that the summary dismissal of Ms Ferla was not due to theft, fraud, violence or a serious breach of OH&S. Therefore Ms Ferla’s summary dismissal was not in accordance with the Code.

[32] Having found that Ms Ferla was not dismissed in accordance with the Code, I am required to consider whether Ms Ferla’s termination was harsh, unjust or unreasonable in accordance with section 387 of the Act.

s.387(a) – valid reason

[33] In Selvachandran v Peterson Plastics Pty Ltd 3 Northrop J, of the Industrial Relations Court of Australia, held that for a reason to terminate an employee to be valid then it should be;

“Sound, defensible and well founded. A reason which is capricious, fanciful spiteful or prejudicial could never be a valid reason…”

[34] In Qantas Airways Ltd v Cornwall 4, the Full Court of the Federal Court said;

“The question is whether there was a valid reason. In general, conduct of that kind would plainly provide a valid reason. However, conduct is not committed in a vacuum, but in the course of the interaction of persons and circumstances, and the events which lead up to an action and those which accompany it may qualify or characterize the nature of the conduct involved.”

[35] In Edwards v Guidice 5, in a different legislative framework, Moore J made the following observation in relation to the operation of s.170CG(3) of the Workplace Relation Act;

“The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s.170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.

The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination.”
(My emphasis)

[36] The oft quoted joint judgement of McHugh and Gummow JJ, in Byrne sets the parameters for these types of determinations;

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. ...

Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable...”

[37] The Full Bench of the AIRC in Australian Meat Holdings Pty Ltd 6 cited this decision in definitive terms;

“The above extract is authority for the proposition that a termination of employment may be:

• unjust, because the employee was not guilty of the misconduct on which the employer acted;
• unreasonable, because it was decided on inferences which could not reasonably have been drawn from the material before the employer; and/or
• harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct.”

[38] Ms Ferla was sacked for striking Mr Pizzolato and not following a lawful instruction to leave the office of CVES. Having found that Ms Ferla did not act violently towards Ms Pizzolato, I cannot support an argument that her actions in trying to distract Mr Pizzolato from his aggressive argument with Ms Pizzolato were a valid reason for her dismissal. If the action of Ms Ferla in hitting Mr Pizzolato was not a valid reason, it necessarily follows that the instruction to get out of the office is also invalid. Consequently, I find that Ms Ferla was not terminated for a valid reason.

s.387(b) – notification for reason

[39] I am satisfied that Ms Ferla was advised by Mr Pizzolato why she had been dismissed before he attempted to pull her out of her chair.

s.387(c) - opportunity to respond

[40] Ms Ferla was not given the opportunity to respond to the allegations. There is no doubt that the atmosphere in the office at that point in time would have been highly charged and emotional. Ms Ferla’s summary dismissal became the release valve for the whole unpleasant and inappropriate situation.

s.387(d) - whether the person was given an opportunity to respond

[41] A subsequent meeting did not occur between the parties so Ms Ferla did not need the opportunity for a support person.

s.387(e) – unsatisfactory performance

[42] Whilst both Mr Pizzolato and Ms Pizzolato testified that they had concerns about the performance of Ms Ferla, it was not the reason for her termination.

s.387(f) – size of the employer

[43] Whilst CVES is a small employer, this issue was not a determining factor on the procedures that were followed in relation to Ms Ferla’s termination.

s.387(g) – absence of dedicated HR

[44] The absence of dedicated human resource management or expertise has had an obvious impact on the procedures that were followed by CVES in terminating Ms Ferla. Undoubtedly an experienced HR practitioner would have intervened and advised Mr Pizzolato to calm down or would have attempted to remedy the situation immediately after it had occurred.

s.387(h) – any other matter

[45] I have taken into account that the witness statements of Mr Pizzolato and Ms Pizzolato appear to be a “mirror” copy of one and other. Under intense cross examination, Ms Pizzolato admitted that her statement was prepared by her legal firm.

[46] I have taken into account that the penalty of Ms Ferla’s termination was not in proportion with the misdemeanour of hitting Mr Pizzolato on the shoulder with a handful of papers. I note that Ms Ferla is a slightly built 55 year old woman. Mr Pizzolato agreed that he was not hurt or intimidated by the actions of Ms Ferla.

Conclusion

[47] I find that CVES did not have a valid reason to terminate Ms Ferla. As a result, I find that Ms Ferla’s dismissal was harsh and unfair.

Remedy

[48] Having found that Ms Ferla has been unfairly dismissed, I now turn to the issue of remedy. Section 390 of the Act sets out the circumstances where I may make an order for reinstatement or compensation.

Section 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.

[49] Both parties submitted that the employment relationship has irretrievably broken down. I concur with their views. Although reinstatement is the principal remedy under the Act, it would not be appropriate to compel Ms Ferla back to a workplace where she was injured and verbally abused.

[50] The only option for remedy is therefore compensation in accordance with section 392 of the Act.

Section 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.

[51] I have also taken into account Ms Ferla’s age. It will be difficult for Ms Ferla to find alternate employment, especially in a role which provides sufficient flexibility for her to undertake responsibility for the on-going care of her mother and Mr and Ms Pizzolato’s grandmother.

s.392(2)(a) – effect of the order on the viability of the enterprise

[52] I am convinced that the viability of CVES will not be in doubt as a result of my order.

s.392(2)(b) – length of service

[53] Ms Ferla had been employed at CVES for 8.5 years. In June 2016, Ms Ferla transferred from full time to part time to allow her to undertake caring responsibility of her mother.

s.392(2)(c) – level of remuneration

[54] Ms Ferla’s rate of pay was $450.40per week (gross). Whilst both Mr and Ms Pizzolato testified that they had some on-going concerns about Ms Ferla’s work performance, neither of them had ever raised the issue with Ms Ferla. As a result, Ms Ferla has an exemplary employment record. I can see no reason why, under normal circumstances, Ms Ferla would not have continued to work in the family business for the next six months. As a result, Ms Ferla would have earnt $11,710.40 during this period.

s.392(2)(d) – attempt to mitigate loss

[55] Ms Ferla has been unable to work since her dismissal due to the injuries that she sustained on 20 July 2016 at CVES. Ms Ferla has been under regular medical supervision during this period.

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

[56] As indicated above, Ms Ferla has not worked since her termination.

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

[57] Due to the current incapacity of Ms Ferla, this matter is not relevant.

s.392(2)(g) – any other matter

[58] I note that Ms Ferla was not paid any notice in her termination pay. I have also concluded that, due to the volatile nature of Mr Pizzolato’s personality, it would have been equally likely that Ms Ferla’s employment could have been longer or shorter than the 6 months that I have calculated. As a result, I have applied a 0% discount for this contingency.

s.392(3) – misconduct reduces the amount

[59] Whilst I regard the actions of Ms Ferla as being non-violent and not serious misconduct, I cannot condone Ms Ferla’s actions in striking Mr Pizzolato. Apart from a possible scenario of self-defence, it is never appropriate conduct for an employer to hit or grab an employee or for an employee to hit or grab an employer. Having previously found that Ms Ferla did in fact hit Mr Pizzolato with a 1cm bundle of paper, I now find that Ms Ferla’s actions constitute misconduct albeit at the low end of the spectrum. Ms Ferla had no right to hit Mr Pizzolato. It would appear that Ms Ferla automatically transitioned in her role from employee to Aunty when Mr Pizzolato threw the bottle of sanitizer at Ms Pizzolato. This intervention was inappropriate.

[60] As a result of this misconduct, I have discounted my order for compensation to Ms Ferla by 5%.

s.392(4) – compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal

[61] The compensation amount that I have ordered does not include any payment for Ms Ferla’s shock, humiliation or distress.

s.392(5) – compensation cap

[62] The amount that I have ordered is less than the compensation cap.

s.392(6) – payment calculation

[63] I have calculated my order in the following manner:

Likely period of employment = 6 months’ pay = $11, 710.40

less

5 % discount for misconduct = $ 585.52

Total = $11, 124.88

Conclusion

[64] I find that Ms Ferla was unfairly dismissed by CVES.

[65] I note that as a result of my finding, Ms Ferla is entitled to be paid her accrued Long Service Leave entitlement in addition to the compensation order.

[66] I order that CVES pay Ms Ferla an amount of $11, 124.88 (less appropriate taxation) as compensation for her unfair dismissal.

COMMISSIONER

 1   Exhibit C1- witness statement of Mario Pizzolato

 2   Small Business Fair Dismissal Code

 3 (1995) 62 IR 371, 373

 4   (1988) 84 FCR 483

 5 [1999] FCA 1836

 6 (1998) 84 IR 14

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