Patrick Peterson v TCB Trading Pty Ltd

[2015] FWC 6262

[2015] FWC 6262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patrick Peterson
v
TCB Trading Pty Ltd; TCB (CIT) Pty Ltd; Security Logistics Australia Pty Ltd
(U2014/15692)

COMMISSIONER GREGORY MELBOURNE, 24 DECEMBER 2015

Application for relief from unfair dismissal – application granted – decision as to remedy.

Introduction

[1] On 11 August 2015 the Commission issued a decision in response to an unfair dismissal application made by Mr Patrick Peterson. 1 It found he had been unfairly dismissed by his former employer, TCB Trading Pty Ltd (“TCB”). The decision also found that reinstatement was not an option in terms of remedy, given the nature of the relationship between the parties.

[2] In such circumstances s.390 of the Fair Work Act 2009 (Cth) (“the Act”) relevantly provides that the Commission must not order the payment of compensation unless it is satisfied that reinstatement is inappropriate, and it considers an order for payment of compensation is appropriate in all the circumstances.

[3] The Commission concluded in its earlier decision that it was unable to come to a concluded view about the issue of compensation given the evidence and submissions before the Commission at the time. Both parties were accordingly directed to provide further written submissions dealing with the relevant considerations in the Act, and directions were set out for filing and service of submissions and evidence. The Commission also indicated the matter would be determined “on the papers,” unless either party requested an opportunity to make further oral submissions, in which case it would be set down for hearing.

The Issue to be Determined

[4] Section 392 of the Act states:

“Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1 must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period – the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.” 2

[5] Therefore, given the criteria contained in s.392 and the submissions provided by the parties what amount of compensation, if any, should be awarded to Mr Peterson in all the circumstances of this matter.

Consideration

[6] I have dealt with this matter taking into account the various criteria set out in s.392(2).

(a) The effect of the order on the viability of the employer’s enterprise

[7] Neither party provided any submissions or evidence about the effect of any order of compensation made in favour of Mr Peterson on the viability of TCB’s enterprise.

(b) The length of the person’s service with the employer

[8] There is some dispute between the parties about the length of the period of Mr Peterson’s employment with TCB.

[9] Mr Peterson says he was employed by TCB, or a related entity of that business, for a total period of three years and five months. He submits he was first employed as an ATM Technician in July 2011, and worked with the business under various business names until 17 November 2014 when his employment was terminated. His submissions attached copies of Group Certificates issued to him in 2012, 2013 and 2014 by both the TCB Training Academy and TCB Trading Pty Ltd. He submits that each of those businesses were owned and operated by Mr Tony Celona, who appeared on behalf of TCB in the earlier unfair dismissal proceedings. 3 Mr Celona also provided the written submissions on behalf of TCB in these proceedings.

[10] However, TCB submits the only period of employment that is relevant in the present application is the period from 4 February 2013 to 17 November 2014, when it submits Mr Peterson was employed by TCB Trading Pty Ltd. It submits this represents a total period of employment of 1 year and 9 months.

(c) The remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[11] Mr Peterson provided information about his earnings in the 26 weeks prior to his dismissal in terms of this consideration. He submits his total earnings from TCB in this period from 29 May to 20 November 2014 period amounted to a total of $21,787.10. TCB also acknowledged in its submissions that this figure is correct.

(d) The efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[12] The submissions provided by Mr Peterson indicate he has managed to find employment elsewhere in the time since his dismissal. He initially worked for two separate businesses, and his submissions set out details about his earnings from those businesses in the 26 week period following his dismissal from TCB. He submits he earned a total of $18,851.03 in that period, or $2,936 less than he earned in the last 26 weeks he was employed by TCB.

[13] He also submits in this context that he was unemployed from the time of his dismissal until 16 December 2014 when he was again able to find employment. He also said he is now working for one employer, but his earnings are approximately $250 per week less than what he was earning at the time he was employed by TCB. He provided various bank statements in support of these submissions.

[14] TCB submits it is not responsible for any loss of earnings incurred by Mr Peterson since leaving TCB. It also submits he would not have been employed on all of the 29 days from the time he was dismissed until the time he was able to find work elsewhere. It concluded by indicating TCB “is prepared to compensate Mr Peterson 38 hours pay at the same pay rate prior to leaving our employ.” 4

(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

[15] The submissions set out above are also relevant to this consideration.

(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

[16] The submissions set out above in regard to paragraph (d) are again relevant in this context.

Any other matter that the FWC considers relevant

[17] Neither party made submissions about any matters that might be relevant in this context and the Commission is not aware of any other matters that should be taken into account.

Conclusion

[18] In determining an amount of compensation in this matter I have had regard to the provisions contained in s.392 of the Act. I have also adopted the approach of the Full Bench in the decision of a Sprigg v Paul’s Licensed Festival Supermarkets 5 which indicates, in part, that there is no specific approach to be applied, and it is a matter instead of considering all the circumstances of the particular matter.

[19] While it will always be a matter of some speculation about how much longer an employee will likely continue to be employed by their employer, if not for their dismissal, I am satisfied Mr Peterson had a reasonable expectation of being employed by TCB for a further period of at least 6 months, if not for his unfair dismissal. Both parties are in agreement that he had been employed for at least 21 months by TCB at the time he was dismissed, and he also appears to have been employed by other related businesses for a further period of more than 18 months. There is nothing to suggest he would not have continued in employment with TCB for a period of time, if not for the fact of his unfair dismissal.

[20] However, I am also satisfied that the efforts of Mr Peterson to mitigate the loss suffered because of his dismissal must be taken into account. It is appropriate that the starting point for considering any order for compensation should be the maximum amount available, being the equivalent of 26 weeks pay as provided for by s.392(6) of the Act. However, Mr Peterson’s submissions indicate he was able to mitigate his losses to a significant extent, and his earnings in the 26 weeks after he was dismissed by TCB were just under $3000 less than his earnings in the last 6 months that he was employed by TCB. Clearly these earnings must be taken into account in terms of mitigation of the loss suffered by Mr Peterson.

[21] As indicated at an earlier point in this decision s.392(3) also requires that if the Commission is satisfied the employee’s conduct contributed to the employer’s decision to dismiss the person the Commission must reduce the amount that would otherwise be ordered by an appropriate amount on account of the misconduct. However, for the reasons set out, in particular, in paragraphs [32] and [33] of the earlier decision in this matter ([2015] FWC 5402) I am not satisfied there is sufficient evidence available to conclude that there should be any deduction because of misconduct on Mr Peterson’s behalf.

[22] In terms of whether there should be any further reduction in the total amount for contingencies it is noted that Mr Peterson’s submissions indicate his earnings are now less than when he was employed by TCB. However, he will receive some benefit from the fact any amount of compensation will be received as a lump sum payment, although the amount will also attract whatever taxation is required by law.

[23] It should also be emphasised, in conclusion, that in accordance with s.392(4) any amount awarded by the Commission 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 their dismissal.

[24] Having had regard to all the circumstances of this matter, and the considerations in s.392 that I am required to take into account, I am satisfied it is appropriate to make an Order for compensation in the sum of $2,936, being the loss of earnings incurred by Mr Peterson in the 26 weeks following his termination, when compared with his earnings in the last 6 months of his employment with TCB. This amount should be paid within 21 days of the date of this decision. An Order to this effect will be issued in conjunction with this Decision. 6

COMMISSIONER

Final written submissions:

The Applicant filed submissions in relation to remedy on 18 August 2015.

The Respondent filed submissions in reply on 2 September 2015.

 1   [2015] FWC 5402

 2   Fair Work Act 2009 (Cth) at s.392

 3   Email from Patrick Peterson to the Chambers of Commissioner Gregory dated Tuesday 18 August 2015

 4   Email from David Padley to the Chambers of Commissioner Gregory dated Wednesday 2 September 2015

 5 (1998) 88 IR 21

 6   PR575497

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