Naser Taghizanjani v Harkola Pty Ltd
[2024] FWC 3586
•24 DECEMBER 2024
| [2024] FWC 3586 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Naser Taghizanjani
v
Harkola Pty Ltd
(U2024/5853)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 24 DECEMBER 2024 |
Application for an unfair dismissal remedy – order for compensation
On 14 November 2024 I issued a decision[1] in this matter in which I found that there was no valid reason for Mr Naser Taghizanjani’s dismissal and that the dismissal was harsh, unjust and unreasonable having regard to all of the matters in s.387 of the Fair Work Act 2009 (the FW Act). I considered that an order for payment of compensation is appropriate and that I would determine that amount after a further hearing.
I issued directions for the filing and serving of material in relation to compensation on 15 November 2024. Mr Taghizanjani filed medical evidence, payslips and other documents on 28 November 2024. Harkola filed evidence and submissions on 16 and 18 December 2024. The matter was listed for hearing in relation to remedy on 20 December 2024 (the remedy hearing).
Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to Mr Taghizanjani in lieu of reinstatement. I consider all the circumstances of the case below.
Effect of the order on the viability of Harkola’s enterprise
There is no evidence before me about this matter so I am unable to conclude that an order for compensation would have an effect on the viability of Harkola’s enterprise.
Length of Mr Taghizanjani’s service
Mr Taghizanjani’s length of service was six years.
I consider that Mr Taghizanjani’s length of service does not support reducing or increasing the amount of compensation ordered.
Remuneration that Mr Taghizanjani would have received, or would have been likely to receive, if Mr Taghizanjani had not been dismissed
As stated by a majority of the Full Court of the Federal Court:
[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.[2]
Evidence and submissions of Mr Taghizanjani
Central to the question of whether the employment would have been likely to continue, or would have been terminated at some time by another means is the impact of the injury to Mr Taghizanjani’s elbow on his employment. I note that in addition to an injury to his elbow, the Certificates of capacity/certificates of fitness provided by Mr Taghizanjani refer to a diagnosis of PTSD which I understand to mean post traumatic stress disorder. There is no evidence that this condition is preventing Mr Taghizanjani from working. The injury to Mr Taghizanjani’s elbow was sustained on or about 14 December 2023[3] but there is no evidence that it impeded Mr Taghizanjani’s ability to perform his usual job in the period prior to the dismissal. On 10 May 2024, Mr Tony Isaac, Chief Operations Manager asked Mr Taghizanjani to operate the tumbler machine soon after Mr Taghizanjani signed in for the day. Mr Taghizanjani said that he did not usually operate the tumbler machine and that it involved lifting bags of nuts that weighed up to 25 kilograms. Mr Taghizanjani said that he tried to explain to Mr Isaac about the injury to his elbow, which had been sustained at work, but Mr Isaac talked over Mr Taghizanjani and terminated his employment.
At the initial hearing, Mr Taghizanjani produced a radiologist report dated 20 May 2024 which confirmed that he has ‘mild common extensor tendinosis’. He also produced a Certificate of capacity/certificate of fitness, completed by his doctor and dated 1 August 2024, which stated that the diagnosis of the work related injury is right extensor tendinitis and PTSD and that the injury is related to work because ‘worker’s job involved constantly mixing nuts with sugar or salt liquid using R hand, developed pain in elbow.’ The certificate said that Mr Taghizanjani has capacity to work for four hours a day on three days per week from 8 August 2024 to 6 September 2024 and that he has a lifting capacity of 2kg.
At the remedy hearing, Mr Taghizanjani produced an updated Certificate of capacity/certificate of fitness, completed by his doctor and dated 6 November 2024, which said that Mr Taghizanjani has capacity to work for four hours a day on three days per week from 7 November 2024 to 5 December 2024 and that he has a lifting capacity of 2kg. Mr Taghizanjani said that he returned to the doctor in December and received a further certificate which said that Mr Taghizanjani has capacity to work for four hours a day on three days per week until 6 January 2025.
Mr Taghizanjani said that his elbow is currently being treated with physiotherapy and that if there is no improvement in his condition, he is likely to undergo surgery at the end of February 2025. Mr Taghizanjani said his doctor is hoping that if Mr Taghizanjani undergoes surgery, he will make a full recovery.
Mr Taghizanjani produced correspondence from EML Claims which showed that Independent Medical Examination appointments had been scheduled in relation to his physical and psychological injuries during the period from December 2024 to March 2025. These included appointments with two orthopaedic surgeons, an occupational physician and three psychiatrists. Mr Taghizanjani advised that he had attended the appointments which were scheduled prior to the remedy hearing but that he was unaware of the outcome of those appointments.
Mr Taghizanjani also produced a letter from Pinnacle Rehab Pty Limited dated 22 November 2024 advising that he had been referred for assistance with securing new employment and job-seeking support. The letter advised that job seeking sessions had been arranged for 27 November and 4, 11 and 18 December 2024. Mr Taghizanjani confirmed that he attended these appointments and that four additional appointments had been scheduled for him to attend in January 2025. Mr Taghizanjani said during the remedy hearing that while he was hopeful that the job seeking sessions would help him to secure alternative employment, this was difficult because of his compensation claim and because he was dismissed from his employment.
Evidence and submissions of Harkola
Harkola produced evidence in the form of a witness statement from Ms Julie Isaac, Director of Harkola. Ms Isaac said that if Mr Taghizanjani had not been dismissed, she would have dismissed him on the basis that he was no longer able to perform the inherent obligations of his employment. Ms Isaac said that the period to dismiss Mr Taghizanjani would have taken no longer than one week and that Mr Taghizanjani would have been called into a meeting and would have been dismissed in the absence of medical evidence saying that he was able to perform his duties. Ms Isaac concluded her statement by saying that Harkola would have made every effort to work with Mr Taghizanjani to address the issues but unfortunately, the situation would have been untenable. Based on Ms Isaac’s evidence, Harkola submitted that it could lawfully have dismissed Mr Taghizanjani six months after 14 December 2023 being 6 June 2024 under s.248 of the Workers Compensation Act 1987 (NSW) (WC Act).
Findings
Based upon my objective assessment of the evidence, I believe that it is unlikely that Harkola would have dismissed Mr Taghizanjani on 6 June 2024.
Firstly, Ms Isaac said that any dismissal on 6 June 2024 would be based upon Mr Taghizanjani no longer being able to perform the inherent obligations of his employment. However, the evidence in the initial hearing was that Mr Taghizanjani was performing his usual role, without restrictions, right up until the date of the dismissal. Mr Taghizanjani was concerned that he was being asked to operate a machine which he did not usually work on and that it involved lifting bags of nuts that weighed up to 25 kilograms. Mr Taghizanjani said that he explained to Mr Isaac that he had a problem with his elbow and had a doctor’s certificate which showed he had a medical reason for not being able to do the job that Mr Isaac had asked him to do. However, this certificate was not in evidence. The evidence before me established that it was not until 1 August 2024 that any restrictions were imposed on Mr Taghizanjani in relation to the performance of his usual role by his doctor. These restrictions were in relation to the number of days and hours of work which Mr Taghizanjani could undertake and the weight which he could lift. There is no evidence before me which establishes that the weight restrictions prevented Mr Taghizanjani from undertaking his usual role. Consequently, I find that the medical restrictions imposed by Mr Taghizanjani’s doctor would have only affected the number of hours which Mr Taghizanjani could perform work and did not apply until 1 August 2024. Therefore, there would have been no basis for Harkola to dismiss Mr Taghizanjani on 6 June 2024 because ‘he was no longer able to perform the inherent obligations of his employment’ as this simply was not the case.
Further it is important to note that s.248 of the WC Act does not provide an unfettered right for an employer to dismiss an employee six months after the date of a workplace injury. Section 248 of the WC Act provides that an employer of an injured worker who dismisses the worker is guilty of an offence if the worker is dismissed during the six month period after the worker first became unfit for employment because the worker is not fit for employment as a result of the injury.
In my view, Mr Taghizanjani could not have been regarded as ‘unfit for employment’ within the meaning of s.248 of the WC Act until he started receiving workers compensation payments with effect from 13 May 2024, as he continued to perform work for Harkola until that date. Further, the Workplace Injury Management and Workers Compensation Act 1998 (WIMWC Act) provides additional obligations upon employers of injured workers which Harkola would have been required to follow. These obligations include the requirements at:
Section 46 that the employer of an injured worker participate and co-operate in the establishment of an injury management plan for an injured worker and comply with obligations imposed on the employer by or under that injury management plan; and
Section 49 that the employer of an injured worker provide suitable employment.
Apart from Ms Isaac’s very broad statement that the situation with respect to Mr Taghizanjani’s injury would have been untenable, there is no evidence which establishes that Harkola would not have been able to meet its obligations under ss. 46 and 49 of the WIMWC Act. In the circumstances and having regard to the nature of the injury, the medical evidence and Harkola’s legal obligations with respect to Mr Taghizanjani, I do not accept that Harkola would have dismissed Mr Taghizanjani on 6 June 2024.
Although there was evidence in the initial hearing that Mr Taghizanjani applied for disability benefits through his superannuation fund,[4] there is no evidence to support a finding that Mr Taghizanjani is permanently incapacitated and would have ceased work some time in the future on this basis. In this regard, the letter dated 24 July 2024 from icare to Harkola which accepted liability for Mr Taghizanjani’s injury advised that Mr Taghizanjani had capacity for some sort of work.[5]
There is no evidence to support a finding that Mr Taghizanjani will not make a full recovery from his injuries. In the circumstances, I find that if Harkola had not dismissed Mr Taghizanjani on 13 May 2024, Harkola would have complied with ss. 46 and 49 of the WIMWC Act and would have provided Mr Taghizanjani with suitable duties until he was able to resume his pre-injury duties.
Mr Taghizanjani was employed for a six-year period by Harkola. There is no evidence to suggest that he was unhappy working at Harkola or that he was considering leaving his employment there. Although Harkola submitted during the initial hearing that Mr Taghizanjani had a poor conduct and performance record, I found in the initial Decision that there was limited evidence to support these claims. I therefore find that if the dismissal had not occurred, Mr Taghizanjani would have continued to work for Harkola for a considerable period of time and that it is unlikely that he would have resigned or been dismissed during this time. I have determined that the period that Mr Taghizanjani would have continued to work for Harkola is two years that is, until 13 May 2026.
There is no dispute between the parties that Mr Taghizanjani’s gross annual salary prior to the dismissal was $65,260. I therefore find that the remuneration that Mr Taghizanjani would have received, or would have been likely to receive, if Mr Taghizanjani had not been dismissed
is $130.520 plus superannuation.
Efforts of Mr Taghizanjani to mitigate the loss suffered by Mr Taghizanjani because of the dismissal
Mr Taghizanjani must provide evidence that he has taken reasonable steps to minimise the impact of the dismissal.[6] What is reasonable depends on the circumstances of the case.[7]
Harkola did not make any submissions in relation to this matter. I find that Mr Taghizanjani has made efforts to mitigate his loss by attending job seeking sessions on 27 November and 4, 11 and 18 December 2024. I accept Mr Taghizanjani’s submission that securing alternative employment is likely to be difficult because of his compensation claim and because he was dismissed from his employment.
Amount of remuneration earned by Mr Taghizanjani from employment or other work during the period between the dismissal and the making of the order for compensation
The evidence produced by Harkola at the remedy hearing establishes that Mr Taghizanjani received gross amounts of:
$3,765.00 at termination in respect of three weeks pay in lieu of notice;
$30,258.80 in workers compensation payments for the period from 13 May 2024 to 8 December 2024.
There is no dispute that Mr Taghizanjani continues to receive weekly workers compensation payments of $944.00.
Therefore the amount of remuneration earned by Mr Taghizanjani during the period between the dismissal and the making of the order for compensation is $36,289.40 which is the sum of:
$3,765.00 (three weeks pay in lieu of notice)
$30,258.80 (workers compensation payments for the period from 13 May 2024 to 8 December 2024)
$2,265.60 (workers compensation payments for the 12 working day period from 9 to 24 December 2024)
Amount of income reasonably likely to be so earned by Mr Taghizanjani during the period between the making of the order for compensation and the actual compensation
Mr Taghizanjani’s evidence at the remedy hearing was that he returned to the doctor in December 2024 and received a further certificate which said that Mr Taghizanjani has capacity to work for four hours a day on three days per week until 6 January 2025. The effect of this certificate is that Mr Taghizanjani is not fit to return to pre-injury duties and as such would be entitled to receive weekly workers compensation payments of $944.00 during the period covered by the certificate.
Based upon Mr Taghizanjani’s submission at the remedy hearing about the difficulty that he is likely to have in obtaining alternative employment, I find that it is not reasonably likely that Mr Taghizanjani will receive remuneration in addition to weekly workers compensation payments during the period between the making of the order for compensation and the actual compensation.
I am satisfied that the amount of income reasonably likely to be earned by Mr Taghizanjani during the two week period between the making of the order for compensation on 24 December 2024 and the payment of compensation on 7 January 2025 is $1,888.00 which is two weeks pay at the weekly workers compensation rate of $944.00.
Other relevant matters
The parties did not make any submissions about other relevant matters however, I have had regard to the following findings in my initial Decision:
[107] The evidence established that Mr Taghizanjani has suffered financial loss as a result of the dismissal. At the time of the hearing, Mr Taghizanjani had not obtained alternative employment. It is likely that this has been compounded by his medical restrictions. If Mr Taghizanjani had remained employed with Harkola, it is likely that he would be able to continue to work despite the injury because of the specific obligations which Harkola has in relation to providing suitable duties to an employee in receipt of workers compensation. Prospective employers have no such obligations towards Mr Taghizanjani.
[108] Although Mr Taghizanjani is in receipt of workers compensation payments, he is receiving less pay than when he was employed by Harkola and it is uncertain how long the workers compensation payments will continue. If the workers compensation payments cease or decrease before Mr Taghizanjani is able to obtain alternative employment, the financial loss that Mr Taghizanjani has suffered as a result of the dismissal will increase. Having regard to all of these circumstances, I consider that an order for payment of compensation is appropriate.[8]
How is the amount of compensation to be calculated?
As noted by the Full Bench:
[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
I have estimated the remuneration Mr Taghizanjani would have received, or would have been likely to have received, if Harkola had not terminated the employment to be $130,520 on the basis of my finding that Mr Taghizanjani would likely have remained in employment until 13 May 2026. This estimate of how long Mr Taghizanjani would have remained in employment is the ‘anticipated period of employment’.[12]
Step 2
I have found that the amount of remuneration earned by Mr Taghizanjani from the date of dismissal was $36,289.40, and that the amount of income reasonably likely to be earned by Mr Taghizanjani between the making of the order for compensation and the payment of compensation is $1,888.00. The sum of these amounts is $38,177.40.
Only monies earned since termination for the anticipated period of employment are to be deducted.[13] I therefore deduct the sum of $38,177.40 from $130,520 which leaves an amount of $92,342.60.
Mr Taghizanjani’s evidence at the hearing is that his elbow is currently being treated with physiotherapy and that if there is no improvement in his condition, he is likely to undergo surgery at the end of February 2025. Mr Taghizanjani said his doctor is hoping that if Mr Taghizanjani undergoes surgery, he will make a full recovery. Based upon this evidence, I find that it is reasonable for the Commission to assume that Mr Taghizanjani is likely to make a full recovery from his injury by 22 April 2025 as this makes allowance for:
A further four month period for Mr Taghizanjani to receive treatment by physiotherapy and other non-surgical methods; or
An eight week period to recover from surgery, assuming that surgery is necessary and takes place on or about 25 February 2025.
This would result in Mr Taghizanjani continuing to receive weekly workers compensation payments of $944.00 for the 15 week period from 7 January 2025 to 22 April 2025 and these payments ceasing after this period. I find that it is unlikely that Mr Taghizanjani will be able to find alternative employment during this period, given that ongoing medical restrictions are likely to apply.
Given the circumstances of the dismissal, and that Mr Taghizanjani would not have worked for almost one year by 22 April 2025, I find that it will take Mr Taghizanjani at least 12 weeks to obtain alternative employment from 22 April 2025, as I believe that it will take a longer than usual period for Mr Taghizanjani to be offered work by a new employer. I find that it is likely that Mr Taghizanjani will be in receipt of his pre-dismissal earnings by 15 July 2025 which is the end of this 12 week period.
There are 70 weeks remaining of the anticipated employment period from 7 January 2025 to 13 May 2026. I believe that Mr Taghizanjani is likely to earn a total gross amount of $68,125 during this time comprising of the following:
· weekly workers compensation payments of $944.00 for the 15 week period from 7 January 2025 to 22 April 2025, which is a total amount of $14,160;
· his pre-dismissal income of $1,255 per week in the 43 week period from 15 July 2025 to 13 May 2026, the conclusion of the anticipated employment period, which is a total amount of $53,965.
I have deducted the amount of $68,125 from $92,342.60 which leaves an amount of $24,217.60.
Step 3
I now need to consider the impact of contingencies on the amounts likely to be earned by Mr Taghizanjani for the remainder of the anticipated period of employment.[14]
There is no evidence before me which establishes the occurrence of contingencies which might have brought about some change in earning capacity or earnings by Mr Taghizanjani during the anticipated period of employment. The effect of my decision is that I found that there Mr Taghizanjani is unlikely to experience ongoing future economic loss with respect to the period beyond 15 July 2025. The Commission has evidence before it of the amounts earned by Mr Taghizanjani during the period from 13 May 2024 to 6 January 2025, so it has been necessary to make assumptions about future economic loss in respect of a limited period of just over six months. I therefore do not consider there to be any evidentiary basis or that it is otherwise appropriate to deduct any amount for contingencies.
Step 4
I have considered the impact of taxation but have elected to settle a gross amount of $24,217.60 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:
It is likely that Mr Taghizanjani would have remained employed by Harkola until 13 May 2026 if he had not been dismissed;
Mr Taghizanjani continues to be unemployed following the dismissal but it in receipt of workers compensation payments;
Mr Taghizanjani’s financial loss has been compounded by the fact that he is an injured worker;
Mr Taghizanjani is likely to continue to receive weekly workers compensation amounts of $944.00 gross until 22 April 2025;
Given the circumstances of the dismissal, and that Mr Taghizanjani would not have worked for almost one year by 22 April 2025, it will take Mr Taghizanjani at least 12 weeks to obtain alternative employment from 22 April 2025; and
After 15 July 2025, Mr Taghizanjani’s earnings are likely to return to their pre-dismissal level.
I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act and that it does not include a component compensating for shock, distress and humiliation.
Is the amount of compensation to be reduced on account of misconduct?
If I am satisfied that misconduct of Mr Taghizanjani contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
I am satisfied that misconduct of Mr Taghizanjani 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.
How does the compensation cap apply?
Section 392(5) of the FW 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); and
(b)half the amount of the high income threshold immediately before the dismissal.
The amount worked out under section 392(6) is the total of the following amounts:
(a)the total amount of the remuneration:
(i)received by Mr Taghizanjani; or
(ii)to which Mr Taghizanjani was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(iii)if Mr Taghizanjani 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 Mr Taghizanjani for the period of leave in accordance with the regulations.
Mr Taghizanjani was not on leave without pay or without full pay during the 26 weeks immediately before the dismissal.
Based on the payslips Harkola tendered at the hearing, I find that the total amount of the remuneration received by Mr Taghizanjani during the 26 weeks immediately before the dismissal was $32,630. This is less than half the high income threshold which applied immediately before the dismissal.[16] The amount of compensation ordered by the Commission must therefore not exceed $32,630.
I have determined that Harkola should pay compensation to Mr Taghizanjani in the sum of $24,217.60 gross plus superannuation less taxation as required by law in lieu of reinstatement within 14 days of the date of this decision.
An order giving effect to this determination is published with this decision.
DEPUTY PRESIDENT
Appearances:
Mr N. Taghizanjani, Applicant
Mr I. Latham, Counsel, for the Respondent
Mr S. Paige, Instructing Solicitor from New South Lawyers, for the Respondent
Hearing details:
2024
20 December
In person, Sydney
[1] [2024] FWC 3153
[2] He v Lewin [2004] FCAFC 161, [58].
[3] Exhibit 3 in the initial proceedings
[4] Digital Hearing Book in the initial proceedings, [104].
[5] Ibid, [109].
[6] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[7] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[8] [2024] FWC 3153, [107]-[108].
[9] (1998) 88 IR 21.
[10] [2013] FWCFB 431.
[11] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
[12] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[13] Ibid.
[14] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
[15] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
[16] The high income threshold which applied immediately before the dismissal was $167,500.
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