Pasqualina Repici v Bank of Sydney Ltd T/A Bank of Sydney

[2015] FWC 4963

[2015] FWC 4963 [Note: An appeal pursuant to s.604 (C2015/4952) was lodged against this decision and the order arising from this decision - refer to Full Bench decisions dated 13 August 2015 [[2015] FWC 5511], 16 October 2015 [[FWCFB 6712] and 20 November 2015 [[2015] FWCFB 7939]] respectively for results of appeal.]

FAIR WORK COMMISSION

FURTHER DECISION IN REGARD

TO REMEDY

Fair Work Act 2009
s.394—Unfair dismissal

Pasqualina Repici
v
Bank of Sydney Ltd T/A Bank of Sydney
(U2014/15399)

COMMISSIONER CRIBB MELBOURNE, 21 JULY 2015

Application for relief from unfair dismissal - further decision in regard to remedy - compensation in lieu of reinstatement.

[1] This decision concerns determination of an amount of compensation, in lieu of reinstatement, to be ordered by the Fair Work Commission (the Commission), pursuant to section 392 of the Fair Work Act 2009 (the Act). It follows the decision 1 on 8 July 2015 in which the Commission found that Ms Repici had been unfairly dismissed. In that decision, the Commission was unable to finally determine an amount of compensation as there was insufficient material before the Commission at that time.2

[2] Accordingly, Ms Repici was directed to provide the Commission and the Respondent with the amount of other remuneration earned between 20 November 2014 and the date of the decision. Ms Repici was also required to provide documentary evidence of the efforts she has made to obtain alternative employment. On 14 July 2015, Ms Repici provided a listing of the jobs applied for through seek.com.au and also advice in relation to any other amounts earned.

[3] I will now deal with determination of an amount of compensation.

1. Remuneration that would have been received (section 392(2)(c))

[4] It has previously been decided that, if Ms Repici had not been dismissed, she would have continued to work for at least another year. 3 Over that period, the remuneration that Ms Repici would have received or would have been likely to receive from the company is $42,979.32 (gross).4

2. Efforts to mitigate loss (section 392(2)(d))

[5] The documentary evidence provided by Ms Repici was a list of positions which Ms Repici had applied for through the website seek.com.au. Ms Repici also stated that the list did not include job applications that she had mailed directly to prospective employers or taken in in person. From the paperwork, it appears that, between 1 June 2014 and 8 July 2015, Ms Repici applied for about 35 positions. The jobs ranged from Accounts Officer and Customer service through to factory hand and cleaner/driver. The reason given for why the other jobs that Ms Repici had applied for were not available was due to the older ones dropping off the Seek system.

[6] During the hearing on 2 March 2015, Ms Repici gave sworn evidence that she had applied for 152 positions through Seek and the job agency, at that stage. 5 Ms Repici also stated that following at least 10 interviews, her references had been checked.6 She explained that she had already had four meetings with WISE Employment (the job agency).7 However, she said that she was changing job agencies to one that more proactively helped people looking for work. It was stated that she was also now a “stage 3” where the job agency had to do job placements and other things “to get you out there”.8

[7] When Ms Repici’s oral evidence and subsequent documentation are taken together, I am satisfied that Ms Repici has made reasonable efforts to mitigate her loss.

3. Remuneration earned (section 392(2)(e) and income reasonably likely to be earned (section 392(2)(f))

[8] Ms Repici confirmed, on 14 July 2015, her oral evidence that she has been in receipt of Centrelink payments only. As the Commission does not take such payments into account, there was no other remuneration earned during the relevant period. This results in a provisional amount of $42,979.32 (gross).

4. Other matters (section 392(2)(g))

[9] As set out in the previous decision, it is proposed to make a deduction of 20% for contingencies. 9

[10] The impact of taxation has been considered but a gross amount will be settled on.

[11] There are no other matters that are considered relevant in determining an amount of compensation instead of reinstatement, apart from those in section 392(2)(a), (b), (c), (d) and (e), (f) and (g), 392(3) and 392(5). These will now be dealt with.

5. Section 392(2)(a) - viability

[12] As found in the previous decision, 10 there is no evidentiary basis before me on which to conclude that an award of compensation would affect the viability of the employer’s enterprise. It is therefore not a matter which, in this case, warrants adjustment to the provisional amount.

6. Section 392(2)(b) - length of service

[13] Ms Repici’s length of service with the Bank was about two and a half years.

7. Section 392(2)(c), (e) and (f) - remuneration likely to have received and any other remuneration earned

[14] In the previous decision, it was found that, had Ms Repici not been dismissed, it is likely that her employment would have continued for a further year. 11 This resulted in a provisional amount of $42,979.32 (gross).12

[15] As there was no other remuneration earned, or likely to be earned, the provisional amount of $42,979.32 (gross) remains unchanged.

8. Section 392(2)(d) - mitigation efforts

[16] As set out in paragraphs [5] - [7] above, I am satisfied that Ms Repici has made reasonable efforts to mitigate her loss.

9. Section 392(2)(g) - other matters

[17] It is proposed to make a deduction of 20% for contingencies. 13 This results in a provisional amount of $34,383.46 (gross).

10. Section 392(3) - misconduct

[18] As indicated in the previous decision, it is proposed to reduce the amount the Commission would otherwise order by 40%. 14

[19] This results in a provisional amount of $20,630.08 (gross).

11. Section 392(5) - compensation cap

[20] Since the amount of compensation of $20,630.08 is less than the compensation cap in section 392(5) of the Act ($21,489.78), I make no further reduction for that reason.

12. Section 393 - instalments

[21] As there were no submissions that any amount of compensation should be subject to payment by instalments, no finding to this effect needs to be made.

Conclusion

[22] Therefore, it is considered appropriate to make an order that the Bank of Sydney pay $20,630.08 (gross), less taxation as required by law, in compensation to Ms Repici in lieu of reinstatement, within 21 days of the date of this decision.

[23] An order 15 to this effect will be issued separately.

 1   [2015] FWC 4571

 2   Ibid at [76]

 3   Ibid at [60] - [61]

 4   Ibid at [62]

 5   Transcript PN 504

 6   Ibid PN 516 - 517

 7   Ibid PN 505

 8   Ibid PN 525

 9   [2015] FWC 4571 at [72]

 10   ibid at [55] - [56]

 11   Ibid at [60]

 12   Ibid at [62]

 13   Ibid at [72]

 14   Ibid at [71]

 15   PR569654

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