Mya Kay Khaing Nyunt v International Institute of Business and Technology - Australia
[2023] FWC 3361
•14 DECEMBER 2023
| [2023] FWC 3361 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Mya Kay Khaing Nyunt
v
International Institute Of Business And Technology – Australia
(U2022/10078)
| COMMISSIONER SCHNEIDER | PERTH, 14 DECEMBER 2023 |
Application for an unfair dismissal remedy
On 27 October 2023, the Fair Work Commission (the Commission) issued a Decision [[2023] FWC 2811][1] finding that Ms Mya Kay Kaing Nyunt (the Applicant) had been unfairly dismissed by her employer, International Institute of Business and Technology - Australia (the Respondent), in reference to section 394 of the Fair Work Act 2009 (Cth) (the Act).
Subsequently, the parties were directed to file submissions in relation to remedy. The Applicant filed submissions and evidence on 7 and 15 November 2023. The Respondent filed submissions and evidence on 9 November 2023. A Hearing in relation to remedy was held by the Commission, on 23 November 2023.
Background
I have found that the Applicant was protected by unfair dismissal at the time of being dismissed and that he was unfairly dismissed from her employment by the Respondent.
Accordingly, I am satisfied that the Applicant:
· made an application for an order granting a remedy under section 394;
· was a person protected from unfair dismissal; and
· was unfairly dismissed within the meaning of section 385 of the Act.
I now turn to addressing the element of remedy, as prescribed under section 390 of the Act.
Subject to the prescribed requirements under section 390 of the Act, I will consider ordering the Applicant’s reinstatement or the payment of compensation to the Applicant if satisfied that such an order is appropriate in all the circumstances of the matter.
Under section 390(3) of the Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Legislation
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
(2) 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
(3) 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
(c) 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.”
In relation to reinstatement, section 391 of the Act provides that:
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
Order to maintain continuity
(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:(a) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement.”
Submissions
Respondent
The submissions made by the Respondent were limited and mainly sought to introduce evidence into the matter which hold greater relevance to the merits of the matter, instead of relating to remedy.
The Respondent provided two “witness” statements from a Ms Tracy Hopkins and a Mr Emilio Gomes Santana. The two witness statements in question relate to the merit of the application and were not previously provided to the Commission. In fact, the Commission had previously been advised by the Respondent that Ms Tracy Hopkins had left employment and was not available to provide evidence.
I note that both statements are word documents and were not dated or signed. The witnesses were not available when the merit was determined. The Applicant and the Commission have been unable to examine the witnesses or determine the credibility of the evidence. Therefore, I had determined that they are of limited relevance and hold little weight in determining the remedy.
The Respondent did not provide any detailed or substantive submissions in relation to the criteria to be considered by the Commission in relation to remedy.
The Respondent provided the below, brief, submissions:
“Remedy – reinstatement
If Mya Kay Khaing Nyunt will give it serious thought, IIBT is willing to have her back in the company. IIBT and Mya Kay Khaing Nyunt will need to talk about this, including the particulars of which classes to teach and the days and times that work best for everyone.
Remedy – compensation
Mya Kay Khaing Nyunt resigned abruptly, and if she did not give the required one week's notice as per her employment contract, then she is the one who owes the company a week's wages, according to the facts as they were reported in writing, the claims she made, and the supporting documentation that both parties submitted. IIBT disputes that because Mya Kay Khaing Nyunt quit and was never terminated, so she is not entitled to any compensation. Although the way the relationship ended is regrettable, IIBT is unable to make it up for the way Mya Kay Khaing Nyunt felt.
IIBT is prepared to comply with the FWC's request if the FWC can provide methods of support for Mya Kay Khaing Nyunt that do not involve payment. When the FWC has considered and analyzed the facts and supporting documentation presented by both parties, IIBT will honor the FWC's decision. The $123,540.12 remedy that Mya Kay Khaing Nyunt is requesting is not accepted by IIBT.”
Applicant
The Applicant provided brief submissions regarding remedy, primarily focused on compensation.
The Applicant provided copies of her employment contracts and a payslip.
In her submissions, the Applicant provided calculations for the compensation sought.
The Applicant submits that she does not consider reinstatement to be applicable in this matter.
Reinstatement – Appropriateness
The Applicant confirmed that they are not seeking reinstatement with the Respondent.
The Respondent confirmed that they are open to reinstatement, but for the Applicant to only perform teaching duties with the Respondent.
I have considered the conduct of the Respondent and how they have handled the matter currently before the Commission. I note that the Respondent engaged a new representative for the remedy hearing and the following comments are not directed at this individual.
The Respondent failed, on numerous occasions, to attend listings before the Commission. The Respondent has been notably difficult to contact throughout these proceedings and regularly did not comply with the Commission’s requests and did not provide any reasonable excuses as to why. The Respondent failed to provide any form of meaningful submissions or evidence at the remedy hearing. Overall, the Respondent has failed to engage with this process in any meaningful way. Such conduct demonstrates the disorganisation of the employer and calls to mind the conduct the Applicant was subjected to leading up to and following her dismissal. As a result of the conduct of the Respondent during the course of the termination and this matter, I do not believe that reinstatement of the Applicant is an appropriate remedy in this circumstance. There is nothing before me that supports the conclusion that if the Applicant were to return to employment with the Respondent that the aforementioned issues, which contributed to her dismissal, would be eliminated. In this matter, it is clear that the relationship between the parties has broken down and eroded trust and confidence to the extent that it would not be feasible to re-establish any employment relationship.
I will now consider whether a payment for compensation is appropriate in all the circumstances.
Compensation – Appropriateness
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench in Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter:[2]
“[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”[3]
Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[4]
The Applicant submitted that compensation was an appropriate remedy in the circumstance.
The Applicant made the following submissions in relation to compensation.
· The Applicant sought a payment of $60,000 in compensation for distress.
· The Applicant’s contract of employment for the position of Academic Dean was for $80,000 per annum.
· The Applicant also received additional payments from the Respondent for duties performed as a sessional lecturer and VET coordinator.
At the remedy hearing on 23 November 2023, I explained to the Applicant that, consistent with section 394(2) of the Act, the Commission cannot award any form of payment for short, distress, or humiliation.
Accordingly, due to the harsh and unjust manner in which the Applicant’s employment was terminated and the impact this decision had on the Applicant; I consider that an order for payment of the compensation is appropriate in the circumstances of the matter.
Compensation – Considerations
Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a)the effect of the order on the viability of the Respondent’s enterprise;
(b)the length of the Applicant’s service;
(c)the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d)the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e)the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f)the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g)any other matter that the Commission considers relevant.
I consider all the circumstances of the case currently before the Commission below.
Effect of the order on the viability of the Respondent’s enterprise
The Respondent did not provide any evidence or submissions that any form of order for compensation would impact the viability of the enterprise.
I am therefore satisfied that an order for compensation would not have an effect on the viability of the Respondent’s enterprise.
Length of the Applicant’s service
The Applicant commenced employment with the Respondent, on a casual basis, on 1 September 2019, as a sessional lecturer. Between 2019 and her dismissal, on 10 October 2022, the Applicant took on the duties of VET Coordinator, before being promoted to her final position as Academic Dean, shortly before her dismissal.
The Applicant had over three years’ service with the Respondent at the time of her dismissal. This is not an insignificant period of service, particularly as the employment arrangement commenced on a casual basis. However, such length of service is also not notably substantial.
I consider that the Applicant’s length of service does not support increasing or decreasing the amount of compensation ordered.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
As stated by a majority of the Full Court of the Federal Court in He v Lewin;[5]
“[i]n determining the remuneration that the Applicant would have received or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.” [6]
The Respondent has not provided any evidence that suggests the Applicant was not performing her duties to the best of her ability. In fact, the Respondent had promoted the Applicant, just prior to her dismissal. I am satisfied that the Applicant was performing her previous role to a satisfactory standard, to such an extent that her performance warranted a promotion.
The Applicant’s submissions mainly focused on providing information in relation to previous economic loss and her current earnings with her new employer.
The Applicant had a not insignificant employment history with the Respondent prior to her dismissal. The Applicant commenced employment on a casual basis in September 2019 and her final position with the Respondent was as Academic Dean.
The Applicant commenced Academic Dean duties on 4 October 2022 and was dismissed on 10 October 2022. I have no doubt that it would have been the intention of the Applicant to remain in this position for an extended duration.
The Applicant had only been held the position of Academic Dean for a week, prior to her dismissal. From the history of the Applicant’s employment with the Respondent it would appear this was a significant promotion for the Applicant.
Given the short duration that the Applicant was engaged in the position of Academic Dean, I cannot be satisfied that the Applicant would have remained in that particular position for an extended period.
Having considered the history of the Applicant’s employment with the Respondent, the seniority of the new position held by the Applicant, and the conduct of the Respondent, I find that, in all probability, the Applicant’s employment would have ended within 20 weeks of the dismissal.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[7] What is reasonable depends on the circumstances of the case.[8]
The Applicant submits that she took reasonable steps to mitigate the loss suffered due to the termination of her employment by the Respondent, by:
· Commencing casual employment with Curtin College, around 5 weeks after her dismissal.
· Accepting casual employment with Pheonix College, in November 2022.
The engagements with Curtin College and Pheonix College ceased in December 2022, presumably due to the end of the school year.
The Applicant return to Pheonix College in February 2023, at the start of the school year, and completed further employment.
Having considered the above factors, I am satisfied that the Applicant took reasonable steps to mitigate their loss.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
The Applicant confirmed that, in the first five weeks following her dismissal, she sought other employment and did not earn any income during this period.
The Applicant confirmed that she has been working casually following her dismissal from the Respondent.
The Applicant confirmed that, at the time of the hearing, she was working 6 hours per week on a casual basis earning $600 per week.
The Applicant confirmed that she had completed the following work and earned the corresponding remuneration:
Employer Time Period Total Income Curtin College November to December 2022 $3,600 Pheonix College November to December 2022 $2,370 Pheonix College February to September 2023 $14,220 South Metro Tafe - Bently October 2023 - current $3,600 South Metro Tafe - Rockingham October to November 2023 $1,800
I am satisfied that the amount of remuneration earned by the Applicant from employment, or other work, during the period since the dismissal, is $25,590.
Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation
The Applicant confirmed that she is currently earning $600 per week on a casual basis.
Therefore, I have calculated the Applicant’s earnings during this period to be $1,800.
Other relevant matters
Neither party brought to my attention any other relevant matters to be considered by the Commission.
Compensation – Calculation
As noted by the Full Bench in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries:
“[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[9] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[10].”[11]
The approach in Sprigg is as follows:
· Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
· Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
· Step 3: Discount the remaining amount for contingencies.
· Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 1
At the time of her dismissal, the Applicant was paid an annual salary of $80,000 in the position of Academic Dean.
I have estimated the remuneration the Applicant would have received, or would have been likely to have received, if the Respondent had not terminated the employment to be $30,769 on the basis of my finding that the Applicant would likely have remained in employment for a further period of 20 weeks.
This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”.[12]
Step 2
I have found that the amount of remuneration earned by the Applicant from the date of dismissal was $25,590, and that the amount of income reasonably likely to be earned by the Applicant between the making of the order for compensation and the payment of compensation is $1,800.
The anticipated period of employment is from 10 October 2022 until 10 April 2023.
Only monies earned since termination for the anticipated period of employment are to be deducted.[13]
From the information provided by the Applicant, during the anticipated period of employment the Applicant earned the below remuneration:
· $3,600 – from Curtin College between November and December 2022.
· $2,370 – from Pheonix College between November and December 2022.
· $4,470 – from Pheonix College between February and April 2023.
I therefore deduct the sum of $10,440.
Step 3
I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment.[14]
Neither party brought to my attention any relevant situations or circumstances which would require any further deductions.
I do not find it appropriate to make any further deductions for contingencies.
Step 4
I have considered the impact of taxation but have elected to settle on the amount of $20,329 (gross) and leave taxation for determination.
Having applied the formula in Sprigg, I am nevertheless required to ensure that “the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case”,[15] including my findings that:
· The payment will not adversely impact the viability of the Respondent’s operations.
· The Applicant’s length of service being a neutral factor.
· The Applicant’s effort to mitigate her loss.
· The Applicant did not engage in any form of misconduct that contributed towards her dismissal.
I am satisfied that the amount of compensation I have determined above takes into account all the circumstances of the case as required by section 392(2) of the Act.
Compensation – Reductions
I am satisfied that misconduct of the Applicant did not contribute to the employer’s decision to dismiss.
Therefore, the amount of the order for compensation is not to be reduced on account of misconduct.
Compensation – Cap
Section 392(5) of the Act provides that the amount of compensation ordered by the Commission must not exceed the lesser of:
(a)the amount worked out under section 392(6) of the Act; and
(b)half the amount of the high-income threshold immediately before the dismissal.
The amount worked out under section 392(6) of the Act is the total of the following amounts:
(a)the total amount of the remuneration:
(a) received by the Applicant; or
(ii) to which the Applicant 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 Applicant 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 Applicant for the period of leave in accordance with the regulations.
The high-income threshold immediately before the dismissal was $162,000. Half of the high-income threshold, as above, is $81,000.
From the submissions and evidence of the Applicant, which I have previously accepted above, the Applicant’s annual remuneration was $80,000.
Accordingly, the amount of compensation ordered by the Commission in this matter must not exceed $40,000.
I confirm that, consistent with section 394(2) of the Act, the amount to be ordered does not include payment for shock, distress, or humiliation caused by the Applicant’s dismissal.
Conclusion
In light of the above, I will make an order that the Respondent pay $20,329 (gross), plus superannuation and less taxation as required by law, to the Applicant, in lieu of reinstatement, within 14 days of the date of this decision. The Order is issued concurrently.[16]
COMMISSIONER
[1] [PR767632].
[2] [2014] FWCFB 7198.
[3] Ibid, [9].
[4] [2020] FWCFB 550, [20]; [2015] FWCFB 4171, [5]-[7].
[5] [2004] FCAFC 161.
[6] Ibid, [58].
[7] PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34]; citing PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[8] PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34]; citing [1919] 2 KB 581.
[9] (1998) 88 IR 21.
[10] [2013] FWCFB 431.
[11] [2016] FWCFB 7206, [16].
[12] Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[13] Ibid.
[14] PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
[15] [2016] FWCFB 7206, [17].
[16] [PR769449].
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