Phillipe Sagrillo v Big Daddy Investments Pty Ltd T/A Zouki

[2016] FWC 7860

[2016] FWC 7860

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phillipe Sagrillo
v
Big Daddy Investments Pty Ltd T/A Zouki
(U2016/5963)

COMMISSIONER GREGORY MELBOURNE, 28 OCTOBER 2016

Application for relief from unfair dismissal.

Introduction

[1] Mr Phillipe Sagrillo commenced working as a kitchen hand at the Dandenong Hospital in February 2011 and continued in that role until his employment was terminated by his employer, Big Daddy Investments Pty Ltd T/A Zouki (“Zouki”), on 4 April 2016. He subsequently lodged this unfair dismissal application.

[2] Zouki initially stated that Mr Sagrillo’s dismissal had been carried out in accordance with the Small Business Fair Dismissal Code, however, it subsequently withdrew this jurisdictional objection. This decision accordingly deals with Mr Sagrillo’s unfair dismissal application.

[3] Mr Nicholas Dircks from Just Relations was granted permission to appear on behalf of Mr Sagrillo under section 596(2)(b) of the Fair Work Act2009 (“the Act”) as the Commission was satisfied it would be unfair not to allow Mr Sagrillo to be represented because he was unable to represent himself effectively. Mr Feng Xu appeared on behalf of Zouki.

The Issue to be Determined

[4] Mr Sagrillo claims he has been unfairly dismissed because his dismissal was harsh, unjust or unreasonable. In determining an unfair dismissal application the Act requires the Commission must take into account the various considerations in s.387. It states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(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.” 1

[5] Therefore, has Mr Sagrillo been unfairly dismissed, taking into account the various considerations in s.387 that the Commission must have regard to?

The Evidence and Submissions

[6] Mr Sagrillo was first employed by Zouki at the cafe at the Dandenong Hospital in February 2011 and worked as a kitchen hand. The submissions provided on his behalf indicate he had some health issues during his employment, which he informed his employer about, but these did not detract from his work performance.

[7] Mr Sagrillo submits that prior to his dismissal he had raised issues about underpayment of wages and other entitlements with his employer. He had also, in further separate discussions, raised issues about the cleanliness of the kitchen area and, in particular, the long-term grease film that had accumulated on the kitchen floor.

[8] He submits he was then dismissed in a meeting with Mr Xu on 4 April 2016 without having been provided with any prior notice or warnings. He was simply told the business could not support him anymore, and had no choice but to terminate his employment. It is also submitted that various threats were then made against him in an attempt to have him drop the various claims he had made against the business.

[9] His submissions also addressed the various considerations in section 387. Mr Sagrillo submits, firstly, that no valid reason existed for his termination, and he was actually dismissed because of the issues he raised about underpayment of wages, and the health and safety issues associated with the cleanliness of the kitchen area. He submits the business did not provide the correct products and equipment to enable appropriate standards of cleanliness to be maintained in the kitchen area. He also submits that even if there were genuine performance issues, which is not conceded, the termination of his employment was a disproportionate response in all the circumstances.

[10] Mr Sagrillo also submits that he was not provided with any reason for his termination, prior to it occurring, and was not given any opportunity to respond to any issues to do with his capacity or conduct. It also submits there was no refusal to allow a support person to be present in the discussions, but Mr Sagrillo was not informed prior to the meeting on 4 April 2016 that the discussions were to be about the termination of his employment.

[11] Mr Sagrillo also submits he was not provided with any warnings, prior to his termination, and was certainly not told his employment was in jeopardy as a consequence of any work performance or behavioural issues. He submits, in conclusion, that he was not provided with a “fair go all around” in the circumstances leading up to and including the termination of his employment.

[12] Mr Sagrillo states that at the time of his dismissal he was one of 3 kitchen hands working at the cafe at the Dandenong Hospital, and he commenced this employment at the beginning of 2011 after obtaining the job through a disability support agency. He said he remained on medication during his employment, but these health issues did not impact on his work performance.

[13] He said he first met Mr Xu in September 2014 after he acquired the business. He said he was never involved in any discussions with Mr Xu about his work performance after that time, and he was not provided with any warnings at any time about his behaviour or work performance.

[14] Mr Sagrillo said that in the last 12 months he advised Mr Xu about various safety issues in the hope that these could be resolved. However, nothing was done and Mr Sagrillo said he believed Mr Xu was unhappy about the fact these issues had been raised.

[15] Mr Sagrillo said he also raised various underpayment issues with Mr Xu in January after obtaining information from the Fair Work Ombudsman, which led him to believe he was being underpaid. He said Mr Xu “became openly unfriendly towards me from this point and that is the real reason for dismissal.” 2

[16] He also said there was then a problem to do with the cleanliness of the kitchen floors and, in particular, the long-term accumulation of grease on the floors. He said he raised these issues in a discussion with Mr Xu, and asked for equipment and materials to be able to clean the floors properly. However, nothing was done, and when the problem was raised again with Mr Xu in a subsequent discussion in the following month Mr Sagrillo said the discussions became quite heated. He said he told Mr Xu at the conclusion of those discussions that he was trying as hard as he could to keep the kitchen clean, but could only do so much with the equipment and products provided to him.

[17] Mr Sagrillo said that on 4 April 2016 he commenced work at around 1 p.m. and was told by a co-worker that Mr Xu wanted to see him. He said he was given no indication in advance about what the discussions were to be about. He said when he met with Mr Xu in his office he was told, “I can’t support you anymore. I don’t think you do cleaning to the specifications. I’ve got no choice but to terminate you.” 3 Mr Sagrillo said there was no mention in these discussions of any specific issues to do with the cleanliness of the kitchen area, or any other reason that would provide justification for his termination.

[18] Mr Sagrillo said that after being terminated he decided to inform the hospital about the health and safety issues he was concerned about, and gave it with some photographs concerning the safety issues he had raised previously. He said Mr Xu subsequently threatened to sue him for defamation because he had raised these issues with the hospital, and because he was pursuing the underpayment and unfair dismissal claims.

[19] The submissions provided on behalf of Zouki confirm the business was aware of Mr Sagrillo’s medical condition, although it is acknowledged he did not seek to be treated differently from other staff members as a consequence.

[20] It submits that on 25 February 2016 the owner of the business was approached by a customer in the cafe, who complained about the slippery floors in the cafe dining area. It submits it was subsequently discovered that Mr Sagrillo had mopped these floors with the same mop that was used to mop the kitchen floor, and the grease from the kitchen floor had been transferred to the floor in the cafe, as a consequence. Zouki submits this issue was raised with Mr Sagrillo at the time, and he was subsequently provided with a verbal warning.

[21] Zouki submits that a similar incident occurred in the following month on 21 March 2016 when a customer in the cafe and a hospital employee both complained that the floors in the cafe were in a “dangerously slippery state.” 4 It submits Mr Sagrillo was again informed about this situation, and provided with a further verbal morning.

[22] It continues to submit that on 4 April 2016 Mr Sagrillo was asked to attend what it described as “a performance meeting.” 5 The concerns about the complaints to do with the slippery floors in the cafe were again raised with him, however, Mr Sagrillo, dismissed the complaints “altogether”.6 It then submits, “the applicant’s lack of acknowledgement prompted his employment termination.”7

[23] Zouki also made reference in its submissions to the issues raised following Mr Sagrillo’s termination about the allegations made to the hospital and the claims for underpayment of wages.

[24] Zouki also provided a witness statement from Mr Sanjeeva Rambukpotha, however, he did not attend the hearing, and was not able to be cross-examined. Mr Rambukpotha indicated in his statement that he is a cook and head of the kitchen at the Dandenong Hospital. He stated that Mr Sagrillo never listens or follows instructions, and purposely cleaned the floors to a poor standard.

Consideration

[25] As indicated at the outset in determining an unfair dismissal application the Act requires that the Commission must take into account the various considerations in s.387 in deciding whether Mr Sagrillo’s dismissal was “harsh, unjust or unreasonable.”

[26] An explanation about the type of conduct that might be encompassed within the phrase “harsh, unjust or unreasonable” is contained in the decision in Byrne & Frew v Australian Airlines Ltd 8 when McHugh and Gummow JJ stated as follows:

“…It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 9

[27] The decision of the Full Bench of Fair Work Australia in L. Sayer v Melsteel Pty Ltd 10 also provides guidance about the Commission’s role in regard to each of the considerations in s.387. It concluded:

“Where the applicant does present a case, in the ordinary course each of the criteria in s.387 which is capable of being relevant on the facts emerging at the hearing must be taken into account.” 11

[28] I now turn to deal with each of the considerations in s.387 and those authorities that are relevant to the determination of this matter.

(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);

[29] In considering whether there was a “valid reason” in all the circumstances of this matter I have again had regard to various relevant authorities who have considered what is required to establish that a valid reason for dismissal exists.

[30] The judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd 12 is often referred to in considering what constitutes a “valid reason.” His Honour came to the following conclusion:

“The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. This is the rationale for the onus of proof provisions contained in s 170EDA.

Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: ‘‘2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’’ In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason’’

In its context in s 170DE(1), the adjective ‘valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly…” 13

[31] In Parmalat Food Products Pty Ltd v Wililo 14 the Full Bench concluded that:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.” 15

[32] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 16 (“Australian Postal Corporation”) also provided a useful summary of the approach to be taken by the Commission in weighing the various factors to be considered:

“Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.” 17

[33] It follows from these authorities that a “valid reason” is one that is “sound defensible and well founded,” as opposed to one that is capricious, spiteful or prejudiced. It must also be valid in the context of both the employee’s capacity or conduct and the operational requirements of the business. In addition, the test must be applied in a practical, common sense way to ensure the parties are treated fairly in circumstances where each has rights and privileges, but duties and obligations as well.

[34] As the decision of the Full Bench in Australian Postal Corporation also makes clear consideration of “valid reason” inevitably involves weighing various considerations, including the conduct involved and any other mitigating or other relevant matters. I have sought to adopt the approach of these authorities in coming to a decision in this matter.

[35] Mr Sagrillo has been employed in the cafe at the hospital for a significant period of time. However, the circumstances that led to his dismissal appear to relate to what occurred in more recent times, although the available submissions and evidence about these circumstances is disputed.

[36] Zouki submits the issues relate to complaints received about the state of the floors in the cafe, which led to Mr Sagrillo being given two separate verbal warnings earlier this year in February and March. However, no evidence of any kind was provided by Zouki about these complaints, or about the warnings and any related issues.

[37] Mr Sagrillo’s evidence is that he was not warned at any time prior to his termination, and he had, in fact, highlighted the issues about the state of the kitchen floors, as well as some other matters that he considered raised potential health and safety concerns. He also raised concerns about being underpaid, and submits it was these issues, in combination, that led to his dismissal.

[38] Mr Sagrillo has had what can be considered to be a relatively long period of employment for someone working as a kitchen hand in a hospital cafe. It appears that for most of this time there were no issues of concern about his work performance or behaviour. However, this situation appears to have changed following a change in ownership of the business, particularly after Mr Sagrillo raised issues about whether he was being paid correctly. As indicated, he also raised what he considered to be various health and safety issues of concern. His evidence indicates that Mr Xu was not happy about these issues being highlighted.

[39] Zouki also submits that Mr Sagrillo was given verbal mornings on two occasions relating to issues about the state of the floor in the cafe. However, no evidence was provided to substantiate these submissions. By contrast the evidence of Mr Sagrillo is that he was never warned about his work performance or behaviour. In addition, he had no understanding in advance that the meeting with Mr Xu on 4 April was to be about his work performance, let alone termination of his employment.

[40] Weighing up all of these considerations I find it difficult to conclude that Zouki had a “valid reason” to terminate Mr Sagrillo’s employment that can be said to be “sound, defensible and well founded.” By contrast I am satisfied that it was a capricious decision, which was primarily a response to the issues Mr Sagrillo had raised about his entitlements and the state of the kitchen area. In conclusion, I am not satisfied that Zouki had a valid reason for dismissing Mr Sagrillo.

(b) whether the person was notified of that reason;

[41] The evidence indicates Mr Sagrillo was given an explanation in the following terms at the time of his termination about why he was being dismissed. “I can’t support you anymore. I don’t think you do cleaning to the specifications. I’ve got no choice but to terminate you.” 18

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[42] The evidence indicates Mr Sagrillo was given little or no opportunity to respond to the reasons related to his dismissal. It indicates those reasons were not made clear to him at the time, and were not foreshadowed in advance of the decision to terminate his employment.

(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;

[43] There is no evidence to suggest Mr Sagrillo was refused the opportunity to have a support person present in any discussions relating to his dismissal. However, it also appears it never occurred to him to have a support person present, because he was not told beforehand that the discussions on 4 April 2016 were to be about termination of his employment.

(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal;

[44] The submissions provided on behalf of Zouki suggest Mr Sagrillo was provided with a verbal warning on two occasions about the state of the floors in the cafe, after complaints were received from customers. However, as indicated at an earlier point no evidence was provided in support of these submissions. The evidence of Mr Sagrillo is that he was not provided with a warning at any time prior to his termination.

(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;

[45] The business run by Zouki at the Dandenong Hospital is relatively small and there is no evidence to suggest it has any specialist knowledge or understanding about the processes and procedures involved in dealing with issues related to termination of employment.

(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;

[46] The conclusions in the paragraph above are again relevant in the context of this consideration.

(h) any other matters that the FWC considers relevant.

[47] I am not aware of any other matters that need to be considered at this point.

[48] In conclusion, having considered each of the matters in s.387 that the Commission is required to take into account I am satisfied that, in all the circumstances, Mr Sagrillo’s dismissal was, at least, harsh and unreasonable. In coming to this decision I have had particular regard to the conclusions reached about “valid reason.” I am now required to consider what is an appropriate remedy in the context of ss.390 and 392 of the Act.

[49] Section 390 of the Actprovides as follows:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate;
and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.” 19

[50] Section 392 of the Act states:

“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

(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.”  20

[51] While the Commission must obviously have regard to the mandatory considerations contained in s.392(2) it has also been made clear in previous decisions that it is appropriate to follow the approach established in the matter of Sprigg v Paul’s Licensed Festival Supermarket 21 (Sprigg), which has been followed in the number of subsequent decisions handed down under the Fair Work Act 2009.

[52] The method of calculating compensation on the basis of the decision in Sprigg involves the following steps:

• Estimating the remuneration the employee would have received, or would have been likely to have received, if the employment had not been terminated.



• Deducting any income earned since the date of termination, noting that the failure to mitigate loss may reduce the amount of compensation awarded.



• The remaining amount is to be discounted for “contingencies.”



• The impact of taxation is taken into account to ensure that the employee receives the actual amount he or she would have received if they continued their employment.



• The legislative cap on compensation is applied. 22

[53] Mr Sagrillo does not seek to be reinstated to his previous position, and it is acknowledged that it would be difficult for him to return in any case, given what happened at the time of his termination, and what apparently transpired between Mr Sagrillo and Mr Xu after that time. However, given the conclusion that his dismissal was unfair I am, in turn, satisfied that it is appropriate in all the circumstances of this matter for an amount of compensation to be provided to him. I now turn to consider what amount might be appropriate, based on the considerations contained in s.392, and the principles established in the decision in Sprigg.

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

[54] No submissions were provided to suggest the effect of any order for compensation would impact on the viability of the business.

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

[55] Mr Sagrillo had been employed for more than 5 years prior to his dismissal. I am satisfied that this is a considerable period of time, given the nature of his employment and the relatively small size of the business.

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

[56] As indicated, Mr Sagrillo had been employed for a significant period of time prior to his dismissal. I am satisfied that, if not for his unfair dismissal, it could reasonably have been expected that he would have continued in employment for at least the 26 week period referred to in s.392(6). In addition, while there is some dispute about the average number of hours he worked each week, the evidence from the payslips provided to the Commission indicate he worked on average for around 24 hours each week, and was paid at an hourly rate of $21.08 and, on average, earned approximately $505 per week.

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

[57] The evidence provided to the Commission indicates Mr Sagrillo has obtained other employment since his dismissal and, in doing so, has sought to mitigate the loss suffered as a consequence of his termination. He apparently commenced in this new role on 5 July 2016, based on the evidence of payslips provided to the Commission, and is earning an amount of $655.56 per fortnight, based on working 2 days each week. At the time of the hearing it was indicated he had earned a total of $1,966.68 23 in this new employment. I am satisfied it is reasonable to conclude that Mr Sagrillo is likely to continue in this employment at this level of income for the foreseeable future.

(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;

[58] The above paragraph is again relevant in this context.

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

[59] Again, the details referred to above are relevant in this context.

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

I am not aware of anything further that needs to be considered.

[60] As indicated, in determining an appropriate amount of compensation I have had regard to the provisions contained in s.392 of the Act. I have also had regard to the approach in Sprigg.

[61] While it will always be a matter of some conjecture about how much longer an employee will likely continue to be employed I have already indicated that Mr Sagrillo had a reasonable expectation of being employed for a further period of at least 6 months in his former role, if not for his unfair dismissal. There is nothing to suggest he would not otherwise have continued in his employment with Zouki. It is accordingly appropriate that the starting point in considering any order for compensation is the maximum period of 26 weeks provided for by s.392(6). Based on his average weekly earnings of $505 this would amount to a total figure of $13,130.00.

[62] However, Mr Sagrillo has sought to mitigate his loss by finding employment elsewhere, and apparently commenced in this new employment on 5 July 2016. At the time of the hearing he had earned a total of $1,966.68, 24 based on a weekly income of $327.80. This period of employment covers 13 of the 26 weeks since the date of his termination. I am accordingly satisfied it is appropriate to deduct these earnings from any amount of compensation awarded. Based on 13 weeks, and the weekly income of $327.80, this amounts to a total of $4,261.40, leaving a figure of $8,868.60.

[63] In addition, I see no reason to make any deduction based on any misconduct that can be attributed to Mr Sagrillo. It is also noted that the Commission cannot include in any compensation any component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the dismissal.

[64] In terms of whether there should be any further deduction in the total amount for contingencies it is noted that the evidence indicates Mr Sagrillo is earning less now than when he was employed by Zouki in the kitchen at the hospital, however, he will receive some benefit from the fact that any amount of compensation will be received as a lump sum, although the amount will also attract whatever taxation is required by law. Nevertheless, it is appropriate to deduct a further amount of 5% in respect of contingencies.

[65] Having 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 $8,425.17. 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.

COMMISSIONER

Appearances:

N Dircks appeared on behalf of the Applicant.

F Xu appeared on his own behalf for the Respondent.

Hearing details:

2016.

Melbourne

August 25

 1   Fair Work Act 2009 (Cth).

 2 Exhibit ND1 at [29].

 3 Ibid at [53].

 4 Respondent’s outline of submissions, dated 18 July 2016, at [11].

 5 Ibid at [13].

 6 Ibid at [14].

 7 Ibid at [15].

 8 (1995) 185 CLR 410.

 9   Ibid at 465.

 10   [2011] FWAFB 7498.

 11 Ibid at [20].

 12 (1995) 62 IR 371.

 13   Ibid at 373.

 14   [2011] FWAFB 1166.

 15 Ibid at [24].

 16   [2013] FWCFB 6191.

 17 Ibid at [58].

 18   Above n 2.

 19   Fair Work Act 2009 (Cth) s 390.

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

 21 (1998) 88 IR 21.

 22   Ibid at 29.

 23   Transcript, 25 August 2016 at PN42.

 24   Ibid.

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