Ms Za v Gdi Pty Ltd
[2021] FWC 3193
•3 JUNE 2021
| [2021] FWC 3193 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms ZA
v
GDI Pty Ltd
(U2020/13167)
COMMISSIONER HUNT | BRISBANE, 3 JUNE 2021 |
Application for an unfair dismissal remedy – respondent failure to comply with s.590(2) order requiring person to attend – matter determined per s.600 in the absence of respondent – respondent’s conduct well short of that expected of employers – dismissal harsh, unjust and unreasonable – maximum compensation awarded.
[1] On 2 October 2020, Ms ZA (the Applicant) made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) alleging she had been dismissed from employment with GDI Pty Ltd (the Respondent / GDI) on 2 October 2020, and that the dismissal was harsh, unjust or unreasonable.
[2] Ms ZA is the sister of Mr Hikaru Okamoto, Director of GDI, and daughter of Mrs Keiko Okamoto. Mrs Okamoto is also known as Ms Keiko Sato and “Coco”. It is understood Mrs Okamoto is considered to be a shadow director and the effective controller of GDI. Mrs Okamoto’s husband incorporated GDI. Ms ZA does not share the last name of her family members.
Confidentially order
[3] I have made a confidentiality Order [PR730423] in respect of the Applicant and her partner. I consider it necessary to protect their identity in these proceedings because of the operation of the temporary protection order described at paragraph [47] below. Throughout this decision the individuals will be referred to as Ms ZA (or the Applicant) and Mr XY.
Background
Date of dismissal
[4] Ms ZA nominated the date of termination as 2 October 2020 in her initial Form F2 filed in the Commission. Ms ZA’s application included a letter from GDI of 4 September 2020 standing down her employment, produced in part below.
“NOTICE OF SUSPENSION
To:
[Ms ZA]
You are hereby suspended from duty, with immediate effect.
…..
We have decided to suspend your duty as an employee of GDI Pty Ltd whilst we investigate your suspected involvement with the conduct of its former director of GDI, [Mr XY]. Until further notice, please do not contact or have any dealings of any kind with [Mr XY].
…..
If you fail to comply with this direction, it will constitute a serious breach of your employment obligations to GDI Pty Ltd.
Hikaru Okamoto
Director
GDI Pty Ltd
4 September 2020”
[5] Ms ZA’s application included two letters composed by her and sent to GDI dated 22 September 2020 and 25 September 2020, reproduced in part below:
“22 September 2020
GDI Pty Ltd
[address]
Dear Mr Hikaru Okamoto,
…..
I received the Notice of Suspension on 6 September 2020.
…..
As requested, I will not contact or have dealings with [Mr XY] during my usual work hours.
…..
However, I note that I have not received my wages this month, payable on the 5th and 20th of every month. I received the notice on the 6th (Sunday) so I had expected my wages to arrive on the 7th (Monday). I was expecting my salary to arrive to my usual bank account yesterday, 21st (Monday), but it still has not been deposited.
…..
I believe you have failed to comply with your obligations as an employer by failing to pay me my salary. Also, you have issued me with a notice of suspension with immediate effect without any prior explanation or notice period.
…..
Therefore, please give me an explanation of exactly what I am being alleged to have done. Particularly, please explain how have I been involved with [Mr XY]’s conduct, which is being investigated.
Please pay my wages in arrears in the amount of $1,419.00 x 2 = $2,838.00 by 5:00 PM tomorrow, 23 September 2020. This short period is because my wages are in arrears for over two weeks already.
My bank account details are:
…..
If I do not receive my salary by the deadline, I will understand that I am under constructive dismissal.
Yours sincerely,
…..”
And:
“25 September 2020
GDI Pty Ltd
[address]
Dear Mr Hikaru Okamoto,
…..
I have not received my wages on 23 September 2020, which was requested on 22 September 2020.
…..
Also, please give me an explanation of exactly what I am being alleged to have done. Particularly, please explain how have I been involved with [Mr XY]’s conduct, which is being investigated.
…..
Please pay my wages in arrears in the amount of $1,419.00 x 2 = $2,838.00 within 7 days by 2 October 2020.
My bank account details are:
…..
If I do not receive my salary by the deadline, I will understand that I am under constructive dismissal.
Yours sincerely,
…..”
[6] On 27 October 2020, GDI filed a Form F3 Employer Response to the application. GDI was legally represented by Ellem Warren Lawyers at that time. In its Form F3, GDI raised a jurisdictional objection to the application that Ms ZA had not been dismissed. GDI provided a copy of a letter, on Ellem Warren Lawyers’ letterhead, dated 21 October 2020, that states:
“21 October 2020
By email: [email address redacted]
Dear [Ms ZA]
We act for GDI Pty Ltd.
We are instructed that on 4 September 2020, our client suspended you from duty without pay. Our client did so whilst our client undertook an investigation into your suspected involvement with the conduct of its former director of GDI Pty Ltd, [Mr XY] ….. You were directed at the time to not contact or have any dealings of any kind with [Mr XY] until further notice, however our client notes that this direction extends only during business hours.
You have since filed an application with the Fair Work Commission claiming unfair dismissal of your employment.
You have not been dismissed by our client. Our client has suspended you from duty whilst they conduct an investigation into your involvement with [Mr XY]. You were employed by GDI Pty Ltd and had access to, and control of, its financial information and resources, including its bank accounts. You were suspended from duty to enable our client to investigate all the circumstances that led to [Mr XY] being removed as a director of GDI Pty Ltd by its shareholder, Chris White on 10 August 2020, including reviewing company records and financial information. This investigation is ongoing. Our client is taking relevant actions against [Mr XY], including reporting him to Police.
You were also suspended from duty, in part, because you ceased to perform your duties for GDI Pty Ltd since July 2020 and after [Mr XY] was removed as a director of GDI Pty Ltd on 10 August 2020. This reasoning should have been obvious to you when you received the notice of suspension. You were and remain bound by your obligations as an employee to continue to perform your duties as required by GDI Pty Ltd. Since July 2020, you have failed to conduct or perform your duties, and have in effect, abandoned your employment.
We understand that after you initially ended your relationship with [Mr XY], your relationship has subsequently resumed shortly after you left your former residence in early August 2020, breaching the direction provided to you not to have dealings with [Mr XY].
When you decided to cease performing your duties, you were not subject to any approved leave, and failed to perform your duties without our client’s consent.
Despite our client’s direction to you not to have any dealings of any kind with [Mr XY], our client understands that you have resumed your relationship with him. Our client is of course unable to direct you not to have any intimate relationship of any kind with [Mr XY], but whilst you remain in such relationship, there was and remains a risk of significant harm that [Mr XY] could cause to GDI Pty Ltd. Given that you had access to our client’s financial information, and knew all access codes to its bank accounts, our client was unable to permit you to remain on duty until such time as it has completed its investigation, including any investigation conducted by any relevant authority regarding [Mr XY]. We understand that these investigations are ongoing.
You remain an employee of GDI Pty Ltd. You owe fiduciary duties to our client to co-operate with our client’s investigation. Our client requests that you provide your written response to the following questions by return email by no later than 4pm on Tuesday, 27 October 2020:
1. Were you instructed, or otherwise requested, by [Mr XY]to withdraw $5,000.00 from our client’s bank account on or before 4 August 2020?
2. If so, what did you do?
3. Were you aware that [Mr XY] intended to withdraw $5,000.00 from our client’s bank account prior to 4 August 2020?
4. Are you aware of what happened to the withdrawn $5,000.00?
5. Have you given [Mr XY], or has [Mr XY] acquired any other monies (in any form) from any account linked to GDI Pty Ltd? If so, please state:
a. the dates,
b. the amounts,
c. the purpose;
d. the method of transfer;
e. your correspondence or interaction with [Mr XY] on each occasion (including the need for receiving the money);
f. how these monies have been utilised.
6. Although you have not performed any work for our client since July 2020, are you willing and able to return to duty, and honestly and faithfully perform your duties without any pressure, control or interference by [Mr XY]?
Subject to receiving your full and frank explanation of the above questions, our client will consider lifting your suspension and allowing your return to work. Our client otherwise reserves all its rights.
We await your response.
Yours faithfully,
ELLEM WARREN LAWYERS”
[7] Following allocation to my chambers, on 10 November 2020 I issued directions for the parties to file materials in preparation for hearing of the application on 2 February 2021. In accordance with my directions, the application was listed for preliminary mention and conference by telephone on 19 November 2020. I advised the parties that at the conference GDI would be expected to address me on how it had lawfully suspended Ms ZA without pay.
[8] On 18 November 2020, one day prior to the scheduled teleconference, Ellem Warren Lawyers on behalf of GDI wrote to my chambers by email, as below:
“We refer to the above matter and the upcoming Conference tomorrow.
At the Conference tomorrow on 19 November 2020, we understand that the Respondent will be expected to address the Commissioner on as to how it is the Respondent has lawfully suspended the Applicant without pay.
To assist the Commissioner to address this issue, please see attached correspondence sent by our firm on behalf of our client to the Applicant on 21 Oct, 9 Nov, 16 Nov and 18 Nov 2020.
Our client has today terminated the Applicant’s employment upon provision of reasonable notice period of 5 weeks. As you will see in our correspondence to the Applicant dated 18 November 2020, our client has lifted the suspension and asked the Applicant to return to work on Friday, 20 November 2020 until the termination date of 24 December 2020 (5 weeks away), and our client will be back paying the applicant’s remuneration (wages and superannuation) from the date of suspension on 4 September 2020, until tomorrow, 19 November 2020. The back payment will be made to the Applicant by Friday, 20 November 2020.
We would otherwise address the Commissioner on the circumstances that led to the suspension without pay at the conference tomorrow.”
[9] Ellem Warren Lawyers’ correspondence on behalf of GDI attached letters sent to Ms ZA on 9 November 2020 and 16 November 2020, to which I have had regard. The correspondence also attached a termination letter dated 18 November 2020, as below:
“18 November 2020
…..
Dear [Ms ZA],
We refer to our letter dated 16 November 2020.
Despite our client’s repeated attempts to obtain your response, you have not provided any response.
Our client considers that it has exhausted all avenues to bring the suspension to an end.
Our client has now decided to terminate your employment with GDI Pty Ltd for the following reasons:
1. You have ceased to perform any duty since July 2020 until you were suspended from duty on 4 September 2020;
2. You have failed to co-operate with our client’s investigation by failing to provide any response to our client’s inquiry;
3. You have failed to provide your response to show cause why you should not be terminated;
4. You have abandoned your employment with GDI Pty Ltd since July 2020 until you were suspended from duty; and
5. Given your conduct with [Mr XY]by unlawfully selling the black Porsche that was owned by Suite Pole for you or [Mr XY]’s benefit without Suite Pole’s knowledge or consent, GDI of our client has lost trust in your ability to work faithfully and honestly for GDI Pty Ltd.
In these circumstances, our client hereby provides reasonable notice period of five (5) weeks to bring your existing employment contract with GDI at an end. Whilst all of our client’s rights remain reserved, upon provision of reasonable notice period of five (5) weeks from the date of this letter (with the effective termination date of 24 December 2020):
1. Our client requires and directs you to return to work from Friday, 20 November 2020 and perform your duties as reasonably directed by our client until the termination date of 24 December 2020. Our client will of course pay your normal remuneration (wages and superannuation) until 24 December 2020 in return for your services as an employee; and
2. Our client will back pay your remuneration (wages and superannuation) from the date of suspension on 4 September 2020 until tomorrow, 19 November 2020. The back payment will be made to you by Friday, 20 November 2020.
Given that you have failed to perform your duties and otherwise abandoned your employment since July 2020, even though you have continued to receive your last payment until 20 August 2020 (a copy of your last pay slip in August 2020 showing the period from 1 August to 15 August 2020 is attached), our client will not pay you from 15 August 2020 until you were suspended from duty on 4 September 2020. Our client considers that during this period, you have acted contrary to your obligations by failing to perform any work without our client’s approval.
Please note that this decision does not in any way relieve your obligations to compensate our client for any loss and damage that it has suffered, including the loss and damage that it has suffered as a consequence of your alleged dealings with the former director [Mr XY], and the loss and damage that Suite Pole has suffered as a consequence of your conduct by unlawfully selling and converting the black Porsche into cash for you or Mr [Mr XY]’s benefit without its knowledge or approval.
Please contact Hikaru Okamoto, Director of GDI at your earliest convenient to arrange your return to work from Friday, 20 November 2020 until the termination date of 24 December 2020.
Yours faithfully,
ELLEM WARREN LAWYERS”
[10] It is undisputed, therefore, in consideration of the letter of 18 November 2020, that Ms ZA was notified of her dismissal from GDI on 18 November 2020, taking effect from 24 December 2020. The consequence of such being that the making of her unfair dismissal application filed 2 October 2020 was premature. Accordingly, I must consider whether the application was validly made, complying with the conditions for the making of an application pursuant to s.394(1) of the Act.
[11] The Full Bench of the Commission considered the proper characterisation of prematurely filed applications in Peter Mihajlovic v Lifeline Macarthur, 1saying at [42]:
“[42] Section 394(1) is, we consider, a procedural provision which identifies who may make an application, similar to the statutory provision considered in Emanuele v Australian Securities Commission. It does not go to the jurisdiction of the Commission to grant an unfair dismissal remedy under Part 3-2 of the Act. An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made. We consider that Mr Mihajlovic’s premature filing of his application constituted an irregularity in the manner in which he made his application capable of waiver under s.586(b).”
[12] Section s.586 of the Act provides:
“Correcting and amending applications and documents etc.
FWA may:
(a) allow a correction or amendment of any application, or other document relating to a matter before FWA, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to FWA.”
[13] In the particular circumstances, namely the chronology of events between 4 September 2020 to 18 November 2020 and GDI’s engagement/correspondence seemingly prompted by its involvement in these Commission proceedings, in adopting the Full Bench in Peter Mihajlovic v Lifeline Macarthur I consider the discretion in s.586(b) should be exercised in Ms ZA’s favour.
[14] I waive the irregularity in the manner in which Ms ZA made her application for an unfair dismissal remedy. There is no doubt that Ms ZA is, and has been since at least 18 November 2020, a person who has been dismissed within the meaning of s.386 of the Act. To not exercise my discretion may result in significant injustice to Ms ZA where the Commission would otherwise be able to hear and determine her claim for unfair dismissal remedy.
[15] There are no other threshold jurisdictional issues present other than the size of the Respondent. Ms ZA confirmed at hearing that GDI employs only seven to eight employees, and accordingly it is necessary to determine if the Respondent complied with the Small Business Fair Dismissal Code in dismissing Ms ZA. Ms ZA has met the minimum employment period, and her annual rate of earnings was less than the high-income threshold.
Participation of GDI
[16] At the teleconference of 19 November 2020, Mr Yuko Araki of Counsel appeared for GDI, instructed by Mr Jason Remeikis of Ellem Warren Lawyers. Mr Okamoto of GDI was also in attendance. Ms ZA was in attendance, representing herself. A Japanese interpreter was also present.
[17] Following the teleconference, I reissued directions for the filing of materials, keeping a hearing date of 2 February 2021, and setting the below timetable:
(a) Ms ZA’s materials to be filed by 8 December 2020;
(b) GDI’s materials to be filed by 15 January 2021; and
(c) Ms ZA to file any materials in reply by 22 January 2021.
[18] On 8 December 2020, Ms ZA filed materials in compliance with my directions. At around 8:00am on 11 January 2021, Ms ZA copied my chambers into email correspondence sent to Ellem Warren Lawyers, that said:
“Dear Mr Remeikis,
According to previous conversation with Mr Araki, I was told I will be paid my termination payment on 24 December 2020. But I still did not receive this. Could you make the payment to my account provided previously.
Yours sincerely,
[Ms ZA]”
[19] At around 3:00pm on 11 January 2021, Mr Remeikis filed a Form F54 notifying the Commission that Ellem Warren Lawyers had ceased to act for GDI. The Form F54 provided an additional ‘care of’ postal address of GDI, being NAC Australia Consultancy.
[20] GDI did not file any materials in preparation for hearing by 15 January 2021, failing to comply with my direction. Consequently, having not received any correspondence from GDI, I caused the below correspondence to be sent to the parties, issuing an Order to attend pursuant to s.590(2)(a) on Mr Hikaru Okamoto and Mrs Okamoto for hearing, as below:
“Dear parties,
GDI Pty Ltd non-compliance with Commissioner’s directions
Reference is made to the attached directions and notice of listing issued by Commissioner Hunt in proceedings U2020/13167. GDI Pty Ltd has not filed any materials in compliance with direction [2], nor sought an extension of time or adjournment.
The Commissioner has decided that the matter will proceed to hearing as listed on 2 February 2021, irrespective of whether the Respondent, GDI Pty Ltd, files any evidence or submissions.
Order to attend the Commission
As the Commission has not received any correspondence from Mr or Mrs Okamoto of the Respondent, the Commissioner ORDERS them to attend the Commission at 10:00am AEST Tuesday, 2 February 2021. The ORDER issued by Commissioner Hunt is attached.
The Applicant, [Ms ZA] is also to be in attendance, and can have any other persons attend with her, such as a support person.
A Japanese interpreter will be arranged.
Service
This correspondence has also been posted to the Respondent at [address]. GDI Pty Ltd’s former legal representatives have advised the Commission that GDI Pty Ltd’s postal address for service is c/- NAC Australia Consultancy [address]. As such, a copy has also been posted to NAC Australia Consultancy.”
[21] The email correspondence above was sent to Mr Okamoto’s known email address. The Order was also sent by post to the address of GDI as presented on Ms ZA’s pay advices, and the c/o address provided by Ellem Warren Lawyers in its Form F54.
[22] On 7 May 2021, I obtained a ‘Current & Historical Company Extract’ search of GDI Pty Ltd from the Australian Securities & Investments Commission (ASIC). The extract confirms NAC Australia Consultancy as the registered address of GDI,and that GDI’sprincipal place of business address is the address presented on Ms ZA’s pay advices. The Order was therefore sent by post to the two proper addresses of GDI.
Hearing
[23] This matter was heard before me in Brisbane on 2 February 2021. Ms ZA attended the hearing, together with her support person and witness, Mr XY. Neither Mr Okamoto nor Mrs Okamoto attended the hearing, failing to comply with my Order issued pursuant to s.590(2)(a) of the Act. No other representative of GDI attended the hearing.
[24] From the point in time when GDI’s representatives informed the Commission they were no longer instructed to represent GDI, the Respondent has been unable or unwilling to defend the application.
[25] I am satisfied that GDI, particularly Mr Okamoto of GDI, was aware of the proceedings, the direction to file materials, and the Commission’s expectation for Mr and Mrs Okamoto, and/or an appropriate representative of GDI to attend and participate in the hearing. GDI was legally represented at the time I issued directions and set down the hearing date and time, and Mr Okamoto was present at the teleconference before me on 19 November 2020. I am further satisfied service of the correspondence set out above at [20], together with the Order pursuant to s.590(2)(a) of the Act was properly effected on the known email and postal addresses of GDI.
[26] Section 600 of the Act allows the Commission to determine a matter before it in the absence of a person who has been required to attend before it. Section 577 of the Act also requires the Commission to perform its functions and exercise its powers in a manner which is fair, just and quick, entitling Ms ZA, and GDI, to be given a “fair go.”
[27] For the reasons above at [25] and as allowed by s.600 of the Act, I decided to conduct the hearing in the absence of GDI.
Applicant’s evidence
Ms ZA
[28] Ms ZA gave the below evidence to the Commission:
• She started working with GDI on 1 October 2018 as a Director’s Assistant;
• She worked part-time, Monday to Friday, 9:00am to 2:30pm;
• Her rate of pay was $31.8526 per hour;
• On 6 August 2020, Mrs Keiko Okamoto also known as “Coco,” being Ms ZA’s mother told her that she did not need to work;
• She worked until 14 August 2020;
• On 14 August 2020 her mother stopped her from working by taking away her laptop;
• Since 14 August 2020, she was “confined” by her mother in her home;
• Her mother is effectively the controller of the Respondent, since she removed Ms ZA’s partner, Mr XY from his directorship by ordering it to the shareholder;
• On 3 September 2020, she fled her confinement and reported the incident to the police. Her mother was named a respondent in a domestic violence order in May 2019, and now the police are currently investigating a breach of the order;
• On 6 September 2020, she received an email with a suspension notice dated 4 September 2020, saying that she was suspended. Ms ZA tried to contact her mother and brother for an explanation, but they did not answer their phones or respond on social media;
• On 22 September 2020, Ms ZA sent a letter to the employer notifying them of the constructive dismissal;
• On 25 September 2020, she sent another letter to the employer and gave them 7 days’ notice, which was at the advice of the Fair Work Ombudsman;
• On 13 October 2020, Ms ZA sold her car, which her mother has reported to the police. On 24 November 2020, the police informed Ms ZA that there are no rational grounds to the complaint and that the complaint had been finalised;
• After making the unfair dismissal claim, on 18 November 2020, the employer informed Ms ZA of her dismissal to take effect from 24 December 2020. However, Ms ZA says the reasons given are unfounded and oppressive. The employer cannot dictate how she lives her life, but her mother is using the employer as a tool to manipulate Ms ZA as she wishes;
• Since the dismissal she has applied for executive assistant roles, manager roles and accounts officer roles at various job openings; and
• Ms ZA is still searching for a job to this date.
Evidence given during the hearing
[29] In oral evidence given at the hearing, Ms ZA stated that she last saw Mr Okamoto in late August 2020. She last saw her mother on 3 December 2020 at the Southport Court House where Ms ZA was an applicant to a domestic protection order against her mother.
[30] Ms ZA described various living arrangements at various properties throughout August and September 2020. She stated that she was living with her mother in Paradise Point until 5 August 2020. Between 6 August 2020 and 14 August 2020, she resided with her mother at a motel or other property. Between 14 August 2020 and 3 September 2020, she stated that she was housed at a different property, confined by her mother.
[31] Ms ZA stated that the last time she was paid was 28 August 2020. Following the conference convened by the Commission, on 20 November 2020 she was paid $6,997.11 to cover the period 4 September 2020 to 18 November 2020.
[32] She stated that she did not work out the notice period 20 November 2020 to 24 December 2020 as she did not accept that she was terminated on 18 November 2020, and considered the termination to have taken effect earlier.
[33] Ms ZA stated that she has a black Porsche registered in her name. She purchased the car in September 2017, paying $15,000 in cash and transferring $40,000 from a Japanese company, Suite Pole she is a shareholder of. Ms ZA described being a shareholder of Suite Pole by virtue of the fact that upon turning 19, she was adopted by a man unrelated to her. This man was known to Ms ZA’s mother. Ms ZA left her mother’s family register in Japan and from that point on became registered on this man’s family register. I understand that the adoption of adult persons in Japan has been occurring for centuries.
[34] On being adopted, Ms ZA was issued with an almost 50% shareholding of Suite Pole. Ms ZA described the relationship between GDI and Suite Pole as GDI consults to Suite Pole. Ms ZA stated that her mother has no relationship with Suite Pole, but she is aware that her mother agreed with Ms ZA’s purchase of the vehicle at the time.
[35] Ms ZA stated that while she had her driver’s licence, she didn’t drive the vehicle. She allowed her brother, mother and Mr XY to drive the vehicle.
[36] Ms ZA stated that following the letter issued to her declaring she had been terminated, she did not receive the five weeks’ notice as promised, nor has she been paid her accrued annual leave. She was in receipt of JobSeeker payments since October 2020.
[37] I questioned Ms ZA as to how long the employment would have continued, but for the dismissal? Ms ZA stated that her mother is not a shareholder of GDI, nor is she a director or an employee. Before all of the family issues emerged, Ms ZA performed the work required of her at the house, which contains an office. Mrs Okamoto has now leased other places to live.
[38] Ms ZA stated that her brother could run the business without their mother’s involvement. She stated that there is no reason for her mother to come to the office as her mother has several homes.
Mr XY
[39] Mr XY made a witness statement in these proceedings. He is a former director of GDI. He gave evidence supporting Ms ZA’s statement, to which I have had regard to the extent it is relevant to her unfair dismissal claim.
[40] Mr XY stated, amongst other things, that Mrs Okamoto used the Respondent entity to control Ms ZA’s conduct, specifically regarding attempting to sabotage the intimate relationship between Ms ZA and Mr XY. He gave evidence that Mrs Okamoto is the ‘controlling mind’ of GDI. Further, he stated that Mrs Okamoto stopped paying wages to Ms ZA, suspended her from duties, and has failed to return her belongings including a phone, laptop, passport, drivers licence, clothes, shoes, personal debit card and personal credit cards.
Ms Tetsu Watanbe
[41] Ms Watanbe made a witness statement in these proceedings. She is a former director and accountant of GDI. She gave evidence that GDI is acting on Mrs Okamoto’s instructions. She stated that her own employment has been suspended without pay for no reason.
Applicant’s submissions
[42] Responding to the five reasons for dismissal set out in the termination letter of 18 November 2020, Ms ZA submitted:
(a) She continued to work until 14 August 2020. Her suspension was communicated by email on 6 September 2020, but the letter was dated 4 September 2020. On 6 August 2020, Mrs Okamoto, as informal controller of the employer, told her it’s ok not to work. On 14 August 2020, Mrs Okamoto told her not to work. She understood the instruction was not to work. This instruction was in place until communicated of suspension on 6 September 2020.
(b) The investigation relates to Ms ZA’s conduct of selling her own car (registered in her name). More importantly, she sold her car on 13 October 2020, but the employer is using this as an excuse for suspension without reason on 6 September 2020.
(c) Ms ZA noted and conveyed to the employer that it had either terminated her or forcibly led her to resign because the employer was not paying any wages. She was under the knowledge that she was already terminated because the employer failed to pay her even though she was told she was not terminated.
(d) As explained above at (a), Ms ZA worked until 14 August 2020 and the employer released her from work until the time of suspension.
(e) As mentioned above, Ms ZA sold her own car. She had lost trust in the employer (and her mother) after Mr XY was terminated from holding his office of director. She was confined until 3 September 2020 when she fled the confinement and then reported this matter to the police.
[43] Ms ZA submitted the dismissal was unfair because:
(a) GDI first suspended her from her duties without any valid reason and did not pay her during the suspension;
(b) GDI did not provide any reasons to her at that time;
(c) GDI did not give her an opportunity to respond to any valid reason before suspension. GDI then ignored her until she made this unfair dismissal claim. Therefore, she was not given any opportunity to respond to the reasons for the dismissal;
(d) GDI is making unreasonable excuses trying to control Ms ZA’s private relationship with her partner, Mr XY;
(e) GDI did not allow her to seek any assistance or help, or even contact her partner for support; and
(f) GDI, effectively Mrs Okamoto, tried to use the employer and her authority to try to remove Ms ZA’s partner from the family.
[44] Regarding remedy, Ms ZA submitted reinstatement would not be appropriate because of the terribly broken-down relationships in these circumstances.
[45] Ms ZA seeks financial compensation of six months wages; as her annual income was $37,000 she confirmed she is seeking an award of $18,500.
[46] Ms ZA believes she would have been employed for six more months if not for the termination, until she earned enough money to go out on her own to find work or return to Japan.
[47] She submitted she has applied for a number of jobs, and has an employment and recruitment agency assisting her. However, her poor English skills are creating a barrier to her promptly finding alternative work. Ms ZA’s materials included evidence of job applications to which she has applied. Following the hearing, Ms ZA provided to the Commission bank records for the relevant periods.
Temporary Protection Order
[48] The temporary protection order names Ms Keiko Sato (Mrs Okamoto) as the Respondent, Mr XY as the aggrieved and Ms ZA as a person protected by the order being a relative of the aggrieved. The order dated 30 November 2020 states:
(1) The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved [Mr XY].
(2) The respondent must be of good behaviour towards the named person and must not commit associated domestic violence against the named person [Ms ZA].
(3) The respondent is prohibited from entering, attempting to enter or approaching to within 100 meters of the premises where the aggrieved or named person [Mr XY and Ms ZA] lives, or works.
(4) The respondent is prohibited from following or remaining or approaching to within 100 metres of the aggrieved or named person [Mr XY and Ms ZA] when the aggrieved or named person are at any place. Except when appearing personally before a court or tribunal.
(5) The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved or named person [Mr XY and Ms ZA] by any means whatsoever including telephone, text or internet. Except when appearing personally before a court or tribunal.
[49] The order suspends a previous order made by the Magistrates Court on 29 May 2019.
Was the dismissal consistent with the Small Business Fair Dismissal Code?
[50] Section 388 of the Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code (the 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.
[51] The Code was declared by the Minister for Employment and Workplace Relations on 24 June 2009, and states:
“Small Business Fair Dismissal Code
Commencement
The Small Business Fair Dismissal Code comes into operation on 1 July 2009.
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.”
[52] As mentioned above, I find that the Respondent was a small business employer within the meaning of s.23 of the Act at the relevant time, having fewer than 15 employees (including casual employees employed on a regular and systematic basis).
[53] It is therefore necessary to consider whether the Respondent complied with the Code in relation to the dismissal. If I find that it did comply with the Code, the application will be dismissed. If I determine that Ms ZA’s dismissal was not in accordance with the Code, it is necessary for me to consider if the dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.
Determination of whether dismissal was in accordance with the Code
[54] In Ryman v Thrash Pty Ltd t/a Wisharts Automotive Services2 the Full Bench considered the proper application of the ‘Summary Dismissal’ section of the Code. The Full Bench’s conclusions were as follows:
“[38] We therefore consider that the “Summary dismissal” section of the Code applies to dismissals without notice on the ground of serious misconduct as defined in reg.1.07.
[39] To be clear, nothing stated above is to be taken as suggesting that in relation to such a dismissal it is necessary for the Commission to be satisfied that the serious misconduct which is the basis for the dismissal actually occurred in order for the dismissal not to be unfair. As was explained in Pinawin T/A RoseVi.Hair.Face.Body v Domingo:
“[29] … There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.”
[40] Whether the employer had “reasonable grounds” for the relevant belief is of course to be determined objectively.
[41] In summary, drawing on the conclusions stated above and the ratio in Pinawin, we consider that the “Summary dismissal” section of the Code operates in the following way:
(1) If a small business employer has dismissed an employee without notice - that is, with immediate effect - on the ground that the employee has committed serious misconduct that falls within the definition in reg.1.07, then it is necessary for the Commission to consider whether the dismissal was consistent with the “Summary dismissal” section of the Code. All other types of dismissals by small business employers are to be considered under the “Other dismissal” section of the Code.
(2) In assessing whether the “Summary dismissal” section of the Code was complied with, it is necessary to determine first whether the employer genuinely held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal, and second whether the employer’s belief was, objectively speaking, based on reasonable grounds. Whether the employer has carried out a reasonable investigation into the matter will be relevant to the second element.”
[55] Regulation 1.07 of the Fair Work Regulations 2009 states:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
the health or safety of a person; or
the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.”
Was Ms ZA summarily dismissed?
[56] The termination letter dated 18 November 2020 does not purport to terminate Ms ZA by way of immediate dismissal. She was informed that she would need to attend for work for five weeks and was expected to perform work. Her evidence is that she already considered her employment to have come to an end.
[57] I am not satisfied, given the letter of 18 November 2020, that Ms ZA was summarily dismissed. Accordingly, it is necessary to determine if the Respondent complied with the Code relevant to “Other dismissal”.
[58] If, however, I am incorrect about Ms ZA and a summary dismissal, I would not be satisfied that the employer believed on reasonable grounds that Ms ZA’s conduct is sufficiently serious to justify immediate dismissal. The Respondent’s grounds for the dismissal are, in my view, fabricated, capricious and spiteful.
Other dismissal
[59] The suspension notice of 4 September 2020 informed Ms ZA that she was suspended while the Respondent investigated her suspected involvement with the conduct of Mr XY. She was told that until she received further notice, she was not to have contact or any dealings of any kind with Mr XY. Clearly this is a direction of an employer well beyond the authority of an employer. It required her to not to have any dealings at all with Mr XY.
[60] Ms ZA communicated in writing on two occasions asking why she was not being paid while she was suspended. The Respondent did not reply.
[61] Only after Ms ZA commenced these proceedings did the Respondent communicate through its lawyers to Ms ZA, informing her that she had not been dismissed, told her she was not to associate with Mr XY (this time during business hours), and asked her a number of questions about her dealings with Mr XY. At no time did the Respondent address its failure to pay to Mr ZA her wages while she was suspended. In fact, it said that it had suspended her without pay.
[62] Having regard to the Code, all of the correspondence sent by the Respondent at this time was a cynical attempt to cover its tracks. It was facing the defence of an unfair dismissal claim, and while ignoring Ms ZA for a substantial period of time, was now trying to challenge her on a number of issues, including what it knew to be her relationship with Mr XY.
[63] There was no genuine or real opportunity provided to Ms ZA to return to work to improve her performance or rectify the problem the Respondent had with her. It wished to exert control over her relationship with Mr XY. It was failing to pay her while she was suspended from her employment. No effort at all was made to pay monies to Ms ZA until such time as the Commission’s inquiry to the Respondent on this issue was made on 10 November 2020. The Respondent then advised, eight days later that it was going to backpay the monies to Ms ZA, it had dismissed her, and required her to attend for work for five weeks. It was, in effect, trying to unscramble the egg.
[64] I am not satisfied that prior to dismissing her, the Respondent gave Ms ZA any opportunity to improve relevant to any deficiency in performance the Respondent considered Ms ZA had. Quite simply, it appeared to be a dispute between the parties intertwined with family matters and attempts to exercise control over Ms ZA’s relationship with Mr XY.
[65] For the above reasons I am not satisfied the Respondent complied with the Code in dismissing Ms ZA. The jurisdictional issue is dismissed.
Criteria in considering if the dismissal is unfair
[66] Section 387 of the Act details what must be considered in determining if a person has been unfairly dismissed:
“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.”
Consideration
[67] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd: 3
“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.”
[68] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter. 4
s.387(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)
[69] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty 5 provides guidance as to what the Commission must consider:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.”
[70] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer. 6
[71] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination. 7 The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.8
[72] Having regard to the termination letter issued to Ms ZA on 18 November 2020, much ado was made about Ms ZA’s failure to respond to the Respondent. No mention was made of the Respondent’s failure to respond to Ms ZA’s request to be paid during the period of suspension.
[73] I am not satisfied that Ms ZA unlawfully sold the black Porsche. Her evidence is that it is registered in her name. No contrary evidence has been provided to the Commission despite all opportunities available to the Respondent, including attending the Commission as per the Commission’s Order.
[74] I consider the reasons for the termination within the termination letter constitute a farce. Ms ZA’s evidence is that she resided with her mother, the ‘mastermind’ of the Respondent for the period July 2020 until 4 September 2020. If she did not perform any duties it was because she was either directed not to do so, or she was not permitted to do so by her mother. It is ridiculous for the Respondent to suggest that she had abandoned her employment with the very person she was living with and who I accept exerted an extraordinary amount of control over an adult child.
[75] Further, the letter of 21 October 2020 to Ms ZA suggests that she was not permitted to reside with Mr XY. Typically, employers do not have much say in the choice employees make as to who shares their home. Some exceptions to this would apply in the case, for example, of national security.
[76] Where Ms ZA concluded that she had been dismissed on 2 October 2020 (rightly or wrongly), had commenced these proceedings, and was not in receipt of payment of wages, I accept that she was within her rights not to respond to the Respondent’s letter of 21 October 2020 where it made a number of demands upon her.
[77] I am not satisfied that there was a valid reason for the dismissal related to Ms ZA’s capacity or conduct.
s.387(b) - Whether the person was notified of that reason
[78] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 9 and in explicit10 and plain and clear terms.11
[79] The decision to dismiss Ms ZA was made on or about 18 November 2020, well after Ms ZA had made this application and after the Commission had inquired about the purported suspension of employment without payment.
[80] In its correspondence of 21 October 2020, the Respondent inquired if Ms ZA was prepared to return to work under certain conditions. It did not address if she might be compensated for the period she had been suspended. The correspondence denied Ms ZA had been dismissed and did not threaten dismissal.
[81] Ms ZA was notified of the reasons for the dismissal in the termination letter dated 18 November 2020.
s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person
[82] Ms ZA concluded (rightly or wrongly) that she had been dismissed on 2 October 2020 when the Respondent refused to respond to her correspondence of 22 and 25 September 2020. She informed the Respondent she would conclude by 2 October 2020 that she had been constructively dismissed if she was not paid by 2 October 2020. The Respondent ignored the correspondence at its peril.
[83] The next correspondence received by Ms ZA was the letter dated 21 October 2020. Ms ZA was asked to respond to questions put by the Respondent, however she concluded by this time that she was not an employee, and not under any obligation to respond to the communication.
s.387(d) - Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal
[84] Ms ZA was dismissed by way of email. Accordingly, there was no discussion relating to the dismissal. There was no unreasonable refusal by the Respondent to allow Ms ZA a support person because no meeting occurred.
s.387(e) - Was there a warning of unsatisfactory work performance before dismissal
[85] The communication between the parties prior to the dismissal does not address unsatisfactory work performance; rather, it is centred around Ms ZA’s relationship with Mr XY, together with issues around the vehicle and other inquiries the Respondent was making.
s.387(f) - Whether the respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed
[86] The Respondent is a family-run business. I accept the size of the Respondent’s business impacted on the procedures followed. There was an absence of a dedicated human resource management specialist, which I accept impacted on the procedures followed.
s.387(h) Other matters
[87] Ms ZA had two years’ service at the time of the dismissal. She speaks Japanese and her English language skills are not strong.
Conclusion
[88] I have determined that there was not a valid reason for the dismissal.
[89] I consider the Respondent’s conduct in dealing with Ms ZA fell well short of that expected of an employer, even allowing for the family dynamics at play.
[90] I find that Ms ZA’s dismissal was harsh, unjust and unreasonable.
Remedy
[91] Section 390 of the Act reads as follows:
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.”
[92] Ms ZA is a person protected from unfair dismissal for the Act’s purposes and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether she can be reinstated.
[93] Having regard to the relationship between the parties, I am satisfied that reinstatement of Ms ZA is inappropriate.
Compensation
[94] Section 392 of the Act 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.”
Authorities
[95] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.12 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;13 Jetstar Airways Pty Ltd v Neeteson-Lemkes14 and McCulloch v Calvary Health Care (McCulloch).15
The effect of the order on the viability of the respondent
[96] No evidence has been provided by the Respondent that an order of compensation would adversely impact on the viability of the Respondent.
The length of Ms ZA’s service
[97] Ms ZA had two years’ service with the Respondent.
The remuneration that Ms ZA would have received, or would have been likely to receive, if she had not been dismissed
[98] While the temporary protection order prevents Mrs Okamoto from having any dealings with Ms ZA, including in the workplace, there is no evidence before the Commission that the Respondent requires Mrs Okamoto to have any ongoing dealings with Ms ZA in the workplace. The Respondent chose not to give evidence before the Commission on this issue, or any issue.
[99] I conclude that there would have been nothing preventing Ms ZA continuing to work for the Respondent where Mr Okamoto provided all instructions and directions. In coming to this conclusion, I have had regard to Ms ZA’s evidence relevant to the various residences she says that her mother owns. There is no evidence to suggest that Mrs Okamoto would need to attend on the particular workplace, in breach of the temporary protection order.
[100] Accordingly, I conclude that Ms ZA would have continued for at least six months in her employment, reporting solely to Mr Okamoto. She would have received $18,500 for her part-time work.
The efforts of Ms ZA (if any) to mitigate the loss suffered because of the dismissal
[101] Ms ZA has made attempts to find alternative work. Having regard to her English language difficulties, it is not surprising she has been unable to find work. I am satisfied she has made appropriate attempts to mitigate her loss.
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
[102] Ms ZA has not earned any remuneration from employment or other work.
The amount of any income reasonably likely to be so earned by Ms ZA during the period between the making of the order for compensation and the actual compensation
[103] This factor is not relevant in the circumstances of this matter.
Other relevant matters
[104] I do not consider that there are any other relevant matters to consider that I have not already addressed above
Misconduct reduces amount
[105] Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.
[106] The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced.16
[107] I do not find that Ms ZA engaged in any misconduct that would reduce the amount to be awarded to her.
Shock, distress etc. disregarded
[108] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Ms ZA by the manner of the dismissal.
Compensation Cap
[109] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.
[110] The high income threshold immediately prior to the dismissal was $153,600, and the amount for 26 weeks was $76,800. The amount of compensation the Commission will order does not exceed the compensation cap.
Payment by instalments
[111] No submissions have been made by the Respondent to make an order of compensation by way of instalments. On the information before me I do not consider it appropriate to make such an order.
Order of compensation
[112] I have determined that the Respondent is to pay to Ms ZA the amount of six months’ pay being an amount of $18,500 gross, subject to taxation. In addition, the Respondent is to pay superannuation into Ms ZA’s superannuation account in the amount of $1,757.50 representing 9.5% of the amount of compensation ordered. The two payments are to made within 14 days of this decision.
[113] An Order of compensation [PR730424] will be issued concurrently with this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR730418>
1 [2014] FWCFB 1070.
2 [2016] FWCFB 1638.
3 (1995) 185 CLR 410, [465].
4 Sayer v Melsteel[2011] FWAFB 7498 at [20].
5 Ltd (1995) 62 IR 371 at 373.
6 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
7 Edwards v Justice Giudice [1999] FCA 1836, [7].
8 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
9 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
10 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
11 Ibid.
12 (1998) 88 IR 21.
13 [2013] FWCFB 431.
14 [2014] FWCFB 8683.
15 [2015] FWCFB 2267.
16 Crawford v BHP Coal Pty Ltd [2017] FWC 154, [345] – [346]; Read v Gordon Square Child Care Centre Inc. [2013] FWCFB 762, [83].
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