Omar Carrim v Marble & Ceramic Corp Pty Ltd
[2024] FWC 1678
•26 JUNE 2024
| [2024] FWC 1678 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Omar Carrim
v
Marble & Ceramic Corp Pty Ltd.
(U2023/11355)
| DEPUTY PRESIDENT EASTON | SYDNEY, 26 JUNE 2024 |
Application for relief from unfair dismissal – valid reason found – failure to provide procedural fairness – dismissal was unfair – compensation granted.
On 22 November 2023 Mr Omar Carrim made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth). Mr Carrim claims that he has been unfairly dismissed from his employment with Marble & Ceramic Corp Pty Ltd. Mr Carrim seeks reinstatement to his former position.
Overview
Mr Carrim was employed from March 2023 to November 2023 as a casual forklift driver. His fortnightly hours ranged from 13 to 61, averaging 32 (approximately two days per week).
In October 2023 Mr Carrim was injured at work. Mr Carrim was not specific about how the injury occurred but said that some marble had lodged in his eye. Marble & Ceramic did not dispute this but said it knew none of the particulars of how the incident occurred because Mr Carrim did not provide any information when he was asked. Mr Carrim said it took several days to identify the cause of his eye problem, that the marble was removed at a hospital, and that he was affected by the injury for approximately four weeks.
Mr Carrim did not make a workers’ compensation claim about his injury.
Mr Carrim said he was dismissed by Marble & Ceramic after he provided a doctor’s certificate regarding his injury, which is chronologically correct, and claimed that he was unfairly dismissal because he provided a medical certificate.
Mr Carrim also claimed that he was directed or pressured to attend work despite advising Marble & Ceramic that he was certified as unfit for work.
Marble & Ceramic said that Mr Carrim:
(a)was not a good worker; was warned (verbally) regarding his attendance, reliability and safety procedures;
(b)was not ever required to work contrary to medical advice;
(c)was invited to make a workers’ compensation claim in relation to his eye injury but chose not to do so;
(d)provided medical evidence/clearance to return to work after his eye injury; and
(e)did in fact return to work.
On or about 2 November 2023 Marble & Ceramic decided that it would be better off deploying other workers instead of continuing to offer hours to Mr Carrim. Even though Mr Carrim’s eye injury was one of the last reasons for Mr Carrim’s absence from work, Marble & Ceramic said it did not dismiss him because of the injury.
The proceedings
Unfortunately the proceedings have had a chequered history. In 2023 Mr Carrim failed to respond to procedural inquiries from Commission staff and his application was dismissed pursuant to s.587 of the Act. That decision was later revoked because Mr Carrim had in fact left a voicemail message after the second message left for him (see Carrim v Marble & Ceramic Corp Pty Ltd[2024] FWC 122).
In March 2024 Mr Carrim failed to comply with directions issued by my chambers in relation to the filing of evidence and submissions and Mr Carrim’s application was almost dismissed for want of prosecution for a second time.
Mr Carrim eventually filed some evidence and submissions but then failed to attend the hearing. He eventually answered his phone on the morning of the hearing and, at least at first, tried to participate in the video hearing using his mobile phone whilst sitting in his car. Mr Carrim’s car was parked in an area that had poor mobile phone reception and these arrangements proved hopeless. The hearing was adjourned for a time to allow Mr Carrim to drive to the Commission’s premises and attend the hearing in person.
Mr Carrim’s Evidence
The whole of Mr Carrim’s filed written statement was as follows:
“Hi sir, I have been unfairly treated and abused By Amir Dadgoster working at marble and ceramic corp. I got injured at work. I was forced to come into work even though the hospital had booked me off. Amir didn’t care about the hospitals as he said he has containers come and that his containers are more important. I was so disgusted at how Amir had been treating me. Also he didn’t pay me for the days I was booked off he said to go fetch the money at workers compensation. Till today he owes me a 3 weeks wages he hurt me so much I’d like maximum compensation in this regard”
Mr Dadgostar cross-examined Mr Carrim and his evidence included:
(a)a casual employee can go [to work] whenever they want to go;
(b)there were no times when Mr Carrim did not show up for work when he was expected to be at work;
(c)he did not think he was a casual employee;
(d)he worked “heaps” of full-time hours, “many weeks”;
(e)he never ever took smoke breaks; and
(f)the crates were poorly packed and Mr Carrim spent most of his time fixing it up.
Mr Carrim’s wife, Ms Marivic Sobremonte, prepared a witness statement as well. Some parts of Ms Sobremonte’s statement were struck out. Her statement was as follows:
“To whom it may concern
My name is Marivic Sobremonte & I am witness to the [struck out] on Omar by “Amir” as I am Omar’s wife. The phone was on loud speaker whilst “Amir” was abusing Omar to come to work. Even though “Omar” told him the hospital booked him off.”
Mr Carrim also relied on medical documents that indicated:
(a)he attended Prince of Wales Hospital as an outpatient on 24 October 2023. The medical treatment he received was “marble extraction from eye”, and he was not fit for work from 24 October 2023 to 27 October 2023;
(b)he was unfit for work from 25 October 2023 to 27 October 2023 inclusively “due to medical reasons”;
(c)he was unfit for work from 1 November 2023 to 3 November 2023 “due to medical reasons”; and
(d)he was unfit for work from 8 November 2023 until 14 November 2023 “due to medical reasons”.
Mr Carrim also filed and tried to rely on a witness statement made by the girlfriend of an ex-employee of Marble & Ceramic. The statement was highly critical of Marble & Ceramic generally and specifically of Dr Dadgostar. I did not allow this statement to be tendered because it was entirely irrelevant.
Marble & Ceramic’s evidence
Dr Amir Dadgostar is the founder and director of Marble & Ceramic. Dr Dadgostar prepared a detailed witness statement outlining Mr Carrim’s employment history. He said that Mr Carrim was hired as a casual employee on 1 March 2023 to assist with forklift and warehouse related work. Dr Dadgostar said that it was made clear to Mr Carrim when he started that he would be offered shifts depending on Marble & Ceramic’s business needs, particularly when Marble & Ceramic’s permanent forklift/warehouse workers were on leave. Dr Dadgostar provided copies of the payslips issued to Mr Carrim, which showed that he frequently worked fewer than 30 hours in a fortnight.
Dr Dadgostar said that early in Mr Carrim’s employment he noticed a pattern of excuses provided by Mr Carrim for not attending shifts that he had agreed to work, and excuses for arriving to work very late. He said that Mr Carrim’s poor attendance caused significant disruption to warehouse operations and that Mr Carrim was warned both orally and via text messages in July 2023 that he needed to improve his communication and provide advance notice if he became unable to attend an agreed to shift.
Dr Dadgostar provided screenshots of text messages sent to Mr Carrim evidencing his lateness and his failure to properly advise the employer of his absence, including the following:
(a)“please make sure you will work today” (3 July 2023);
(b)“Hi Omar. I am disappointed that you did not answer me and you did not let me know if you can not work. Tomorrow we have full staff and do not need you to work. I let you know when we need you next if you are available to work.” (4 July 2023);
(c)“how long for lunch, please do not leave the site for lunch. You should bring your lunch with you.” (26 July 2023);
(d)“Where are you now? We need to empty containers asap?” (22 August 2023, 10:47am); and
(e)“Hi Omar, what time will you be back?” (18 October 2023, 1:15pm).
Dr Dadgostar also said that Mr Carrim was not following safety procedures, including carrying more than two crates at one time on the forklift which, he said, created a serious risk of harm to himself and others. Mr Carrim disregarded these instructions and on one occasion the crates eventually collapsed, and goods were damaged. Dr Dadgostar said of this “no one was thankfully injured, but Omar failed to explain why he was reckless and did not listen to previous warnings and instructions.”
In relation to warnings given to Mr Carrim, Dr Dadgostar said the following:
“After continued poor performance and dangerous work practices, sometime in July 2023, I spoke to Omar several times over the phone and in-person about how he was not meeting expectations. Omar was given adequate opportunity to respond to these observations and improve his performance, but instead of taking responsibility and ownership of his poor work performance, he attempted to shift blame to other staff.”
In relation to Mr Carrim’s eye injury, Dr Dadgostar said:
“In the middle of October 2023, Omar abandoned one of his shifts. It was only a few days later that he stated via text message that it was because pieces of marble allegedly went into his eye at work. While we asked for him to detail the particulars of how and when he was injured, Omar refused to provide such information. He was never prevented from filling an incident/injury report and refused to pursue workers compensation for unclear reasons. He was never requested to work on the days in which his medical professionals recommended he was unfit for work, and I certainly did not berate him for not being available for work during that period.”
Mr Carrim did return to work after his eye injury, but Dr Dadgostar spoke to Mr Carrim about his continued poor performance and “untrustworthiness”. Dr Dadgostar told Mr Carrim that due to the nature of his casual employment, and because of his frequent cancellation of agreed shifts, Mr Carrim must provide his availability in advance so that Dr Dadgostar could assess what days to offer him work if needed. It seems that it was this conversation that Ms Sobremonte overheard.
Mr Carrim did not provide his availability to Dr Dadgostar. Dr Dadgostar then decided to no longer offer Mr Carrim any further work. He said about this:
“After failing to provide his availability in November 2023, I notified him over the phone the reasons for not offering him further shifts. These reasons are contained in paragraph 3 of the Respondent Outline of Submissions. After again failing to provide his availability and strangely asserting that he was a full-time worker, and again not taking responsibility for his behaviour, I confirmed over text the reasons why I would not offer Omar further shifts.”
Deciding to no longer offer Mr Carrim any work was summarised in Marble & Ceramic’s written submissions:
“a. Omar frequently came to work later than agreed or not at all when agreed upon beforehand; frequently disappeared during his shifts for long periods of time without notifying anyone (taking long smoke breaks and long[er] than agreed lunch breaks, sometimes well in excess of an hour); and frequently abandoned his shifts without prior notice (leaving work earlier than agreed, often leaving the warehouse in disarray).
b. Omar, on multiple occasions, committed serious breaches of occupational health and safety procedures, risking the safety of staff around him and causing significant damage to goods.
c. Omar’s general work performance (ability to satisfactorily complete warehouse activities (eg. ensuring inventory changes and the movement/placement of crates are accurately recorded)) and ability to follow basic instructions did not improve over time, despite constant feedback and being given multiple opportunities over time to improve.
d. Omar’s general unfitness/unsuitability to work in a warehouse setting, indicated by his frequent poor health, back problems and proneness for injury, all of which prevented him from conducting the physical labour required to complete necessary warehouse tasks, such as lifting and packing/unpacking heavy goods, in accordance with MCC’s business needs.”
After making this decision Dr Dadgostar sent a text message to Mr Carrim in the following terms:
“Hi Omar,
Due to your inconsistent working time and availability and as you are casual and on call basis, you need to call me with your availability for work and we let you know if we have any need.
Thanks
Amir”
Dr Dadgostar also relied on a further SMS exchange with Mr Carrim in November 2023:
Mr Carrim (2 November): “I was working full hours until I got hurt at work”
Mr Carrim (2 November): “And I should be compensated for that not slashed”
Dr Dadgostar (15 November):
“No Omar, you were casual,
As your availability was limited and actually when we needed you, you were not available, working hours were very unusual, someday you start 11 and some days go early without notifying us etc. so we could not rely on you.
So this job was also not suitable for you because you mentioned to my staff that you have historical back problem, you complain about pay, and not generally happy as well as causing incident in our warehouse damaging goods.
Regardless of the above and as this is the pay week, please send me an email with all your certificates so we can lodge with worker compensation which they will then interview you and ask all medical condition etc.
Please send the email urgently.”
Mr Arslan Uyar is the Senior Sales and Client Manager for Marble & Ceramic. He said that Mr Carrim was not a punctual or reliable person and that he always had irrelevant excuses to explain why he was late, why he had to leave early, or why he was not able to come on a working day on which he agreed to come. Mr Uyar said Mr Carrim was repeatedly told not to lift more than one crate at a time for safety reasons when using the forklift but that he never listened. He also said that forklift drivers are supposed to return crates to the same spot indicated in the warehouse chart after packing is done, or they needed to update the quantities and warehouse chart if the crate is relocated. He said that Mr Carrim “was very lazy in that he would not take the crates back to their original location, he always ignore[d] the warehouse chart, or he just made up the numbers when he was asked for an update, causing numerous problems in the inventory system.” He said “as a result, we still have missing items in the warehouse.” He said that Mr Carrim had been given far too many chances and opportunities to improve but that he did not show any improvement in his skills and behaviours “or any kind of good intention worthy of becoming a permanent reliable employee in the future”.
Mr James Stack is Sales and Marketing Manager. Mr Stack’s views of Mr Carrim was similar to Mr Uyar’s, although Mr Stack went further to say, “over time, working with Omar became very concerning as he did not present great skill of the forklift, demonstrated a total lack of retention on previously taught activities, poor communication, and he was easily distracted during critical moments.”
Consideration
There is no real contest that Mr Carrim was an employee who was dismissed. Mr Carrim was engaged on a casual basis but there was sufficient regularity to his employment that he had a reasonable expectation of ongoing employment. Marble & Ceramic decided that it would not offer Mr Carrim any more work which clearly constitutes a dismissal.
In determining whether Mr Carrim’s dismissal was harsh, unjust or unreasonable s.387 of the Fair Work Act 2009 (Cth) (FW Act) requires me to take into account the following matters:
(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.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct (s.387(a))?
To be a valid reason, the reason for the dismissal should be sound, defensible or well founded and should not be capricious, fanciful, spiteful or prejudiced. In assessing the validity of the reason(s) for dismissal the Commission will not stand in the shoes of the employer and determine what the Commission would have done in the same position.
I find that there were valid reasons for dismissal. Marble & Ceramic’s concerns, summarised by Mr Dadgostar at paragraph [25] above, are generally all matters that employers can legitimately consider when deciding whether to allocate or continue offering casual hours to casual employees.
On many occasions Marble & Ceramic had to send messages to Mr Carrim to find out where he was. On occasions he simply did not show up at the time that he was expected, and on other occasions he did not return from a lunch break and left work without notice.
Mr Carrim thought that he was entitled to be flexible in his availability as a casual employee. This is true to a degree. Casual employment is just that and generally involves a lesser commitment from both the employer and the employee. Employers who do not commit to engaging staff on a permanent basis have less cause to complain if their casual staff do not fully commit to making themselves available to work.
However, if work is offered to a casual employee and the employee agrees in advance to work, then the employer can legitimately be concerned if the casual employee simply does not show up, or arrives late without notice, or even leaves early without notice.
Mr Carrim denied that he absented himself from work without approval and without notice. Marble & Ceramic’s SMS messages tell a different story. Mr Carrim was simply not reliable. Marble & Ceramic’s evidence clearly established that on many occasions Mr Carrim failed to attend work at agreed times and failed to respond to the employer’s attempts to contact him about his absence.
Marble & Ceramic’s concerns about Mr Carrim’s failure to follow WHS and operational instructions are valid reasons for dismissal.
Mr Carrim’s supposed “general unfitness/unsuitability” is more problematic as a reason for dismissal. On the evidence Mr Carrim was fit to work at the time he was dismissed (save for specific days of absence because of his eye injury). Over the months he worked he was prone to injury however there is no evidence to support Marble & Ceramic’s assertion that Mr Carrim was generally unfit and/or unsuitable for work as a forklift driver.
Was the Applicant notified of the valid reason (s.387(b))?
Section 387(b) requires that I take into account whether the employee “was notified of that reason.” Sections 387(b) and (c) direct the Commission’s inquiry to matters of procedural fairness. In general terms an employer should not exercise legal power over an employee to the employee’s disadvantage without first affording the employee an opportunity to present a case (per Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 [70] citing FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West (1985) 159 CLR 550; Annetts v McCann and others (1990) 170 CLR 596).
In context, the inquiry to be made under s.387(b) is whether the employee was “notified” of that reason before the employer made the decision to terminate (per Sydney Trains v Trevor Cahill[2021] FWCFB 1137 at [60]). The reference to “that reason” is a reference to the valid reason(s) found to exist under s.387(a) and the reference to being “notified” is a reference to explicitly putting the reasons to the employee in plain and clear terms (per Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19] and Sydney Trains v Trevor Cahill[2021] FWCFB 1137 at [60]).
Marble & Ceramic did not notify Mr Carrim of the reasons for his dismissal before Marble & Ceramic made the decision to dismiss him. On 2 November 2023 Marble & Ceramic sent an SMS to Mr Carrim advising that “you need to call me with your availability for work and we let you know if we have any need” (see the full message at paragraph [26] above).
Two things can be noted about this message. Firstly, Marble & Ceramic maintained that this message was effective in dismissing Mr Carrim. That is, Marble & Ceramic submitted that the effective date of the dismissal was 2 November 2023. Secondly, although the SMS refers to Mr Carrim’s “inconsistent working time and availability”, Mr Carrim was not notified of this matter prior to the dismissal.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct (s.387(c))?
The opportunity to respond to which s.387(c) refers is an opportunity to respond to the reason for which the employee may be about to be dismissed.
Mr Carrim was not given a proper opportunity to respond to the allegations against him. He was told several times during his employment that his conduct (including his reliability and adherence to safety procedures) was not satisfactory, but Marble & Ceramic did not allow him to respond to these concerns or to present a case as to why he should not be dismissed.
Did Marble & Ceramic unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal (s.387(d))?
This factor is not a relevant consideration in this matter.
Was the Applicant warned about unsatisfactory performance before the dismissal (s.387(e))?
Marble & Ceramic said it warned Mr Carrim on several occasions about his reliability and his conduct. Mr Carrim denies that he received any such warnings. No documented warnings per se were provided to Mr Carrim. On the evidence before me, particularly the SMS messages and also the evidence of Dr Dadgostar, Mr Uyar and Mr Stack, I am satisfied that Mr Carrim was squarely told that his attendance, reliability and adherence to safety measures were not satisfactory.
However I am not satisfied that Mr Carrim was told that he might be dismissed if the unsatisfactory conduct continued.
To what degree would the size of Marble & Ceramic’s enterprise be likely to impact on the procedures followed in effecting the dismissal (s.387(f))?
Neither party submitted that the size of Marble & Ceramic’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of Marble & Ceramic’s enterprise had no such impact.
To what degree would the absence of dedicated human resource management specialists or expertise in Marble & Ceramic’s enterprise be likely to impact on the procedures followed in effecting the dismissal (s.387(g))?
In this matter the absence of dedicated human resource management specialists or expertise in Marble & Ceramic’s enterprise did impact on the procedures followed by Marble & Ceramic in dismissing Mr Carrim. Marble & Ceramic is a medium sized employer but not large enough to have a dedicated human resource management function.
Specialist expertise would have improved the process by which Mr Carrim was dismissed.
What other matters are relevant (s.387(h))?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
There are no other factors that arise in this matter.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in s.387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
I find that the dismissal of Mr Carrim was unfair.
Mr Carrim’s conduct over a lengthy period was unacceptable and Marble & Ceramic was entitled to dismiss him after affording him procedural fairness. However Mr Carrim was not afforded sufficient procedural fairness.
Dr Dadgostar spoke to Mr Carrim “towards the end of October 2023” about his attendance and other matters. At this time Mr Carrim’s immediate fitness for work was compromised by his eye injury. Mr Carrim produced medical certificates for many of the working days in this period (late October and early November). Mr Carrim did not appear to accept responsibility for any of his actions and did not accept in the course of the proceedings that his conduct was unacceptable. In this context it is not surprising that Mr Carrim believed that the only reason he was dismissed was the injury to his eye.
Marble & Ceramic argued that Mr Carrim’s eye injury was not relevant to its reason to dismiss him. Two consequences flow from this: firstly, if Mr Carrim’s conduct over several months was the reason for dismissal then Mr Carrim should have been formally warned that if the conduct continued then his employment would be terminated. Secondly, immediately prior to dismissing Mr Carrim Marble & Ceramic should have put to Mr Carrim its concerns about his conduct over several months, told that it was considering dismissal and invited his response.
Remedy - Compensation
Being satisfied that Mr Carrim made an application for an order granting a remedy under s.394, was a person protected from unfair dismissal and was unfairly dismissed within the meaning of s.385 of the FW Act, I may order Mr Carrim’s reinstatement, or the payment of compensation.
It is not appropriate at all to reinstate Mr Carrim. The animosity between Mr Carrim and Marble & Ceramic is such that a positive or proper working relationship cannot be restored.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. The question whether to order a remedy remains a discretionary one (per Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198 at [9]).
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 (per Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171 at [5]-[7]).
Although Mr Carrim’s employment was not particularly secure, there was some regularity to the work he performed. I accept that he suffered some financial loss as a result of the dismissal.
Compensation – what must be taken into account in determining an amount?
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 Carrim in lieu of reinstatement including:
(a)the effect of the order on the viability of Marble & Ceramic’s enterprise;
(b)the length of Mr Carrim’s service;
(c)the remuneration that Mr Carrim would have received, or would have been likely to receive, if Mr Carrim had not been dismissed;
(d)the efforts of Mr Carrim (if any) to mitigate the loss suffered by Mr Carrim because of the dismissal;
(e)the amount of any remuneration earned by Mr Carrim 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 Mr Carrim 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 will consider these factors in sequence:
a)There is no dispute and I am satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise;
b)Mr Carrim’s length of service was reasonably short, which slightly favours a lesser amount of compensation;
c)if Mr Carrim had not been dismissed I am satisfied that his employment was not likely to have continued for very long. If Mr Carrim had been provided procedural fairness and a formal warning it is likely that his employment would only have lasted a few working days. The problems with Mr Carrim’s employment appear to be chronic and it is highly unlikely that Mr Carrim would have appreciated the need to correct his behaviour or had the capacity to in fact address Marble & Ceramic’s concerns;
d)there is no evidence about whether Mr Carrim mitigated his loss;
e)the amount of income reasonably likely to be earned by Mr Carrim between the making of the order for compensation and the payment of compensation is not directly relevant; and
f)There are no other directly relevant matters.
Compensation – how is the amount to be calculated?
The 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 (1998) 88 IR 21 (Sprigg) (see also Bowden v Ottrey Homes Cobram and District Retirement Villages (2013) 229 IR 6; [2013] FWCFB 431 and Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206 at [16]).
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 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 Carrim would have received, or would have been likely to have received, if Marble & Ceramic had not terminated the employment to be $1,280 on the basis of my finding that Mr Carrim would likely have remained in employment for a further period of three to five shifts. Mr Carrim was paid $32 per hour and I have applied the outside number in the range, being 5 shifts at 8 hours per shift (at $32 per hour).
Step 2
I have assumed that Mr Carrim did not earn any monies in the first two weeks after his dismissal and so have not included a deductible amount in Step 2.
Step 3
There are no other relevant contingencies to consider (see generally Enhance Systems Pty Ltd v Cox PR910779 at [39]).
Step 4
I have considered the impact of taxation but have elected to settle a gross amount of $1, 280 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” (see Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206 at [17]).
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.
In this matter the amount of the order for compensation is not to be reduced on account of misconduct (per s.392(3)).
The cap on compensation in s.392(5) of the FW Act has no impact upon the present matter.
In light of the above, I will make an order that Marble & Ceramic pay $1,280 less taxation as required by law to Mr Carrim within 21 days of the date of this decision, plus an additional component for superannuation.
DEPUTY PRESIDENT
Appearances:
O Carrim, Applicant
A Dadgostar, for the Respondent
Hearing details:
2024.
Sydney
April 3.
Printed by authority of the Commonwealth Government Printer
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