Raquel Ciuzelis v James Benedict Jones

[2014] FWC 5566

[2014] FWC 5566 [Note: An appeal pursuant to s.604 (C2014/6135) was lodged against this decision - refer to Full Bench decision dated 12 March 2015 [[2015] FWCFB 84] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Raquel Ciuzelis
v
James Benedict Jones
(U2013/10511)

DEPUTY PRESIDENT ASBURY BRISBANE, 15 AUGUST 2014

Application for an unfair dismissal remedy.

Background

[1] Raquel Ciuzelis applies for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The application was originally made with respect to her employment by the Pet Cemetery and Crematorium Greenbank/James Jones. By consent the application was amended so that the Respondent is James Benedict Jones on the basis that Mr Jones’ registered trading name is The Pet Cemetery and Crematorium ABN 49 681 271 044, and that he operated the Pet Cemetery and Crematorium Greenbank as an Individual/Sole Trader.

[2] The background can be briefly stated. Ms Ciuzelis was employed by Mr Jones as an Office Manager on a full time basis from 4 July 2011 until her dismissal on 6 June 2013. Ms Ciuzelis was absent from work from 10 May 2013 because of a back injury which she alleges was originally sustained on 5 July 2012 while at work. The cause of the injury and whether it occurred at work is in dispute and was the subject of a Workers’ Compensation claim which was ultimately rejected.

[3] Ms Ciuzelis was cleared to return to work on 10 June 2013. There were issues with her return to work and before she could do so Mr Jones sold his business to Greencross Limited. Mr Jones asserts that Greencross was under no obligation to offer employment to any employees but that employment was offered to all of those who were at work. Ms Ciuzelis was not at work when the sale was effected and was accordingly made redundant.

[4] Ms Ciuzelis contends that she was dismissed because she injured her back at work and took the appropriate action to seek treatment for her injury and that her dismissal was unfair.

[5] With respect to the initial matters required to be considered by virtue of subsections (a), (b) and (d) of s.396, the application was made within the period required in s.394(2) of the Act and Ms Ciuzelis was protected from unfair dismissal as provided in s.382 of the Act. The application was dealt with by way of a hearing, as it was considered that this was the appropriate course, having taken into account the matters set out in s.399 of the Act and the views of the parties. Ms Ciuzelis and Mr Jones gave evidence in the hearing.

Legislation

[6] By virtue of s.385 of the Act, a person has been unfairly dismissed if the Commission is satisfied that:

(a) The person has been dismissed;
(b) The dismissal was harsh, unjust or unreasonable;
(c) The dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) The dismissal was not a case of genuine redundancy.

[7] By virtue of s. 389(1) a person’s dismissal was a case of genuine redundancy if:

“389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.”

[8] A person’s dismissal was not a case of genuine redundancy if, as provided in s.389(2) it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) The employer’s enterprise; or

(b) The enterprise of an associated entity of the employer.

[9] Notwithstanding that Mr Jones did not raise a jurisdictional objection to Ms Ciuzelis’ application on the ground of genuine redundancy, he asserted that she was redundant. I am therefore required to consider whether or not the exclusion in s.385(d) applies, and if that exclusion does apply, to find that her dismissal was not unfair. If the dismissal was not a genuine redundancy, I am required to consider whether Ms Ciuzelis’ dismissal was unfair on the grounds that it was harsh, unjust and unreasonable by considering the criteria in s.387 of the Act.

[10] In relation to the question of whether Ms Ciuzelis’ dismissal was a genuine redundancy as defined in s.389 of the Act, there was no specific evidence about whether a modern award covered Ms Ciuzelis’ employment. Her uncontested evidence is that she was employed in the capacity of Office Manager. On the basis of the evidence that is before me it is probable that Ms Ciuzelis’ employment was covered by a modern award - either the Clerks Private Sector Award 2010 or the Cemetery Industry Award 2010. Both of those Awards contain a standard clause in relation to consultation, which is in the following terms:

8.1 Consultation regarding major workplace change

(a) Employer to notify

(i) Where an employer has made a definite decision to introduce major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must notify the employees who may be affected by the proposed changes and their representatives, if any.

(ii) Significant effects include termination of employment; major changes in the composition, operation or size of the employer’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this award makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.

(b) Employer to discuss change

(i) The employer must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 8.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.

(ii) The discussions must commence as early as practicable after a definite decision has been made by the employer to make the changes referred to in clause 8.1(a).

(iii) For the purposes of such discussion, the employer must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that no employer is required to disclose confidential information the disclosure of which would be contrary to the employer’s interests.

[11] The clause is numbered as clause 8.1 in each Award and applies regardless of whether the employer is excluded from obligations to pay redundancy pay because the employer has less than 15 employees.

[12] If the dismissal is not a case of genuine redundancy, the Commission is required to consider whether it is harsh, unjust or unreasonable on the basis of the following criteria set out in s.387 of the Act:

“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.”

Evidence and submissions

[13] Ms Ciuzelis asserts that she injured her back on 5 July 2012 when she was assisting another employee to move deceased Rottweiler named JD. Ms Ciuzelis said that she did not report her injury formally as there was no process in the workplace to do so, but maintained that she told Mr Jones on 6 July 2012 what had occurred. Ms Ciuzelis suffered back pain after the injury occurred, and first sought medical treatment on 25 September 2012. She was prescribed gentle stretching and strengthening exercises, heat treatment and pain medication. Ms Ciuzelis also said that she did not seek treatment for her injury at the outset because she had seen Mr Jones dismiss other employees in similar circumstances and her job had previously been threatened when she enquired about Award conditions.

[14] Ms Ciuzelis said that she continued to be impacted by the injury and on 10 May 2013 her pain was unbearable and she was not able to go to work. Ms Ciuzelis telephoned Mr Jones and told him that she was going to a chiropractor that day to seek treatment. After receiving treatment Ms Ciuzelis again telephoned Mr Jones and told him that she had been advised that she would need to be off work until 20 May 2013 and that she would provide a medical certificate and keep Mr Jones up to date.

[15] Ms Ciuzelis sought further treatment from a chiropractor on 13, 14 and 17 May 2013. Ms Ciuzelis telephoned Mr Jones on 15 May 2013 and updated him about her injury and treatment. Ms Ciuzelis also tendered a medical certificate issued by her chiropractor on 10 May 2013 indicating that she would be incapacitated for work from that date until 19 May inclusive. On 20 May 2013 Ms Ciuzelis telephoned Mr Jones and spoke to another employee and told her to tell Mr Jones that she would not be at work.

[16] On 21 May 2013 Ms Ciuzelis had a CT scan which indicated disc protrusions in her lower back. Ms Ciuzelis telephoned Mr Jones to tell him that she would be visiting her GP to discuss this injury and made a further call to Mr Jones later on that date to discuss the fact that she had not been paid since 13 May 2013. Ms Ciuzelis also lodged a claim for Workers’ Compensation on 21 May 2013. Ms Ciuzelis tendered medical certificates and a report outlining the results of the CT scan.

[17] On 27 May 2013 Ms Ciuzelis advised Mr Jones that she was ready to return to work. According to Ms Ciuzelis, Mr Jones told her that she had been replaced and not to bother coming in. When Ms Ciuzelis said that she had a medical certificate stating that she was ready to return to work, Mr Jones requested that she come into the office the next day to discuss the matter.

[18] Upon arriving at work on 28 May 2013 Ms Ciuzelis provided Mr Jones with a medical certificate, stating that:

“Ms Raquel Ciuzelis has a medical condition and was unfit for work from 10/15/2013 to 27/05/2013 inclusive.”¹

[19] According to Ms Ciuzelis, she was told by Mr Jones that she was a liability and could not return to work or be paid until the WorkCover claim was sorted. Ms Ciuzelis also contended that Mr Jones offered to simply pay her annual leave and “be done with it”, which she declined and left the premises.

[20] On 29 May 2013 Ms Ciuzelis received an email from WorkCover Queensland Claims Representative stating:

“…I took a call from your employer today, they have advised that your medical certificate ran out on 27 May 2013 and you turned up for work on 18 May 2013 to which they sent you home.

After speaking to your employer they advised they sent you home as they require a clearance certificate from your doctor advising you are fit for duty, but may not have mentioned that to you yesterday…”

[21] Ms Ciuzelis was referred by her GP to a physiotherapist for mobility and conditioning assessment and on 5 June 2013 received a clearance to return to work on 10 June 2013. After receiving this certificate, and prior to 10 June 2013, Ms Ciuzelis telephoned Mr Jones and told him that she was cleared to return to work from that date. Ms Ciuzelis also forwarded the medical certificate to Mr Jones by facsimile on 5 June 2013 and again telephoned Mr Jones to ensure that it had been received. During this telephone call Mr Jones told Ms Ciuzelis that he would need to consult with his solicitor and would get back to her.

[22] On 6 June 2013 Ms Ciuzelis telephoned Mr Jones after missing a call from him, and was told that he had a purchaser for the business who had chosen to take on all employees except Ms Ciuzelis, as she was away. Mr Jones terminated Ms Ciuzelis’ employment and paid her two weeks wages in lieu of notice and her accrued annual leave. Ms Ciuzelis also received an Employment Separation Certificate stating that the reason for separation was redundancy. Ms Ciuzelis maintained that her position was not redundant because at the point of the sale of Mr Jones’s business there was a casual employee filling her position and the position was still in existence.

[23] In response to questions from the Commission, Ms Ciuzelis said that her Workers’ Compensation claim had ceased and she did not take it forward because of the legal fees involved. Under cross-examination Ms Ciuzelis agreed that her Workers’ Compensation claim was rejected.

[24] Ms Ciuzelis initially received some Workers’ Compensation payments in respect of the injury. Ms Ciuzelis also said that despite applying for a number of positions after her dismissal, she did not obtain employment until 2 December 2013. Ms Ciuzelis received a total amount of $2,722.15 from Centrelink for the period September until 10 December 2013. Her weekly wage during the period of her employment was $880 per week gross.

[25] According to Mr Jones’ statement, the business had been for sale since March 2013. A message was received that Ms Ciuzelis would be off work from 10 May 2013 and on 15 May 2013 Ms Ciuzelis responded to a text message from another employee, and stated that she had a misaligned vertebrae.

[26] On 22 May 2013 Mr Jones received an email from WorkCover advising that Ms Ciuzelis had made a claim for a back injury suffered in October 2012 and later that date was amended to July 2012. Mr Jones said that he was unaware that Ms Ciuzelis had ever suffered a back injury. Ms Ciuzelis had no accrued sick leave as she had taken it progressively, and her pay ceased. A casual employee was hired to fill Ms Ciuzelis’ position as her return date was unknown.

[27] On 22 May 2013 Mr Jones also received an offer via his broker for the sale of the business. In the initial stages of due diligence the sale was required to be kept confidential. Staff, including the casual employee, became aware of the sale on or about 15 June 2013. On 17 June 2013 Mr Jones was informed that the sale would definitely proceed and it was completed on or about 19 June 2013 with settlement being effected on 20 June 2013. The business was purchased by Greencross Limited and staff were informed on that date that the settlement would proceed and were offered contracts of employment by Greencross. All staff were offered contracts of employment and accepted them. Ms Ciuzelis was not offered a contract of employment by Greencross.

[28] Mr Jones said that Greencross required the business to be delivered as a going concern and all staff performing duties were offered employment. Greencross had no obligation to hire staff, but wanted to hire all staff currently doing work in the business.

[29] Mr Jones tendered information from a business broker and from Greencross confirming that the completion date for the sale was 19 June 2013. Greencross also provided a statement tendered by Mr Jones confirming that Ms Ciuzelis was not offered employment following the completion date and her name was not included on a list of transferring employees contained in a schedule to the agreement for sale of the business.

[30] Mr Jones initially said in his written statement that Ms Ciuzelis’ certificate clearing her to return to work was received on 6 July 2013 but agreed in his oral evidence to the Commission that the certificate was received on 6 June 2013. Upon receiving the certificate, Mr Jones telephoned Ms Ciuzelis and told her that the business had been sold and that she was no longer required. According to Mr Jones, as he no longer owned the business and Ms Ciuzelis was now fit for work, she was made redundant.

[31] Mr Jones said that there was no opportunity during the due diligence period to protest about who was offered employment by Greencross and who was not. Mr Jones also said that he was asked for a list of employees doing the jobs, and there was a casual employee doing Ms Ciuzelis’ job on the day he was asked to provide the list. In response to a question from the Commission, Mr Jones agreed that he had known on 5 June 2013 that Ms Ciuzelis would be fit to return to work on 10 June 2013 and had not told Greencross that this was the case, notwithstanding that the completion date for the sale of the business was 19 June 2013.

[32] Mr Jones said that when he broke the news to Ms Ciuzelis that she had not been offered an employment contract, Ms Ciuzelis did not ask him to approach Greencross on her behalf. Under cross-examination, the proposition was put to Mr Jones that he dismissed Ms Ciuzelis before she was due to come back to work. Mr Jones said in response that Ms Ciuzelis did not have a job because she was not going to be offered a contract by Greencross but he could not “sack” her because she was on Workers’ Compensation. In response to the proposition that a casual employee was filling Ms Ciuzelis’ position at the relevant time, Mr Jones said that he was simply asked who was doing the jobs at that time.

[33] Greencross produced material in response to a notice to produce issued by the Commission. Mr Jones attended a hearing at the Commission with a representative of Greencross pursuant to the production of that material on 13 January 2014. The material is a copy of the contract for sale of the business and offers of employment made to former employees of Mr Jones. Given that Mr Jones signed the contract for sale and must therefore be familiar with the material, I have taken that material into account.

[34] The contract for sale of the business is dated 7 June 2013. It is signed by Mr Jones and a representative of Greencross, but there is no date under the signatures. It indicates that former employees of Mr Jones were offered a range of positions described as Casual Sales Representative, Full Time Sales Representative, Full Time Administration Assistant and Full Time Groundsman.

[35] The contract for the sale of the business defines “Employees” as “Employees named in Schedule 2”. The contract states that the respective periods of service of each employee are set out in Schedule 2. Schedule 2 does not include any reference to Ms Ciuzelis. There is an employee who is said to be a Casual Sales Representative with a start date of 7 June 2013. There is an asterisk beside the name of that employee but no details of what that asterisk indicates. The other casual employees on the list have start dates prior to the commencement of Ms Ciuzelis’ absence from work. The contract indicates that Mr Jones is the business manager for Greencross referred to in the contract as the person to whom employees are now to report. Item 16.2 of the contract of sale is in the following terms:

“Purchaser’s obligations

16.1 Periods of employment

(a) The purchaser will notify the vendor in writing of on or before the Due Diligence Date the names of any employees who the purchaser proposes to employ;

(b) The purchaser must offer each Employee whose name is notified to the vendor employment on terms and conditions substantially similar to and on an overall basis no less favourable than the Employee’s terms and conditions of employment with the vendor and in substantially the same terms as the Employment Agreement in Schedule 2.”

[36] The Due Diligence Date is listed in Schedule 1 as 14 June 2013. The Completion Date in that Schedule is listed as 19 June 2013.

[37] Mr Jones stated in his evidence to the Commission that his wife worked for the business making plaques and was not offered employment by Greencross. Mr Jones further stated that his wife and Ms Ciuzelis were the only persons not offered employment. He further stated that his wife was on the list and Ms Ciuzelis was not. Perusal of Schedule 2 to the contract of sale, which is said to be the list of employees and the contracts of employment produced by Greencross, show that every employee on the list was offered a contract of employment. As previously noted, Ms Ciuzelis’ name does not appear on the list.

Conclusions

Was Ms Ciuzelis’ dismissal genuine redundancy?

[38] I do not accept that Ms Ciuzelis’ dismissal was a genuine redundancy so that she is prevented from making an application for an unfair dismissal remedy. Ms Ciuzelis was dismissed on 6 June 2013. Mr Jones states that at that point, a casual employee was performing her role and continued to do so after her dismissal. That casual employee was offered ongoing work by Greencross upon purchase of the business from Mr Jones. The documentary material in relation to the sale shows that a casual employee commenced the day after Ms Ciuzelis’ dismissal.

[39] Regardless of when the casual employee commenced employment, it could not be said that at the point of her dismissal, Mr Jones no longer required Ms Ciuzelis’ job to be done by anyone. The job was being done by a casual employee who, on Mr Jones’ evidence, was replacing Ms Ciuzelis while she was absent from the workplace due to an injury. If this was not the case, the casual employee commenced employment the day after Ms Ciuzelis was dismissed. It is irrelevant for these purposes whether Ms Ciuzelis suffered the injury at work or whether she was in receipt of Workers’ Compensation payments. The simple fact of the matter is that at the point she was dismissed, her job was required to be done.

[40] If I am wrong on that point, I am also satisfied that Ms Ciuzelis’ employment was covered by a modern award which contained consultation provisions that applied in circumstances where Ms Ciuzelis’ position was to be made redundant, and that Mr Jones did not comply with the terms of those provisions. Mr Jones gave inconsistent evidence about the dates upon which he was aware of the sale of his business and the impact on employees. After considering his evidence I am of the view that it is more probable than not that at the point Mr Jones dismissed Ms Ciuzelis, he knew that the business would be sold to Greencross and that Greencross was not going to offer Ms Ciuzelis an employment contract. This was a matter about which Ms Ciuzelis (and other employees) were entitled to be consulted. There was no consultation with Ms Ciuzelis. That Ms Ciuzelis was absent from the workplace does not remove that obligation.

Was there a valid reason for Ms Ciuzelis’ dismissal?

[41] In relation to the criteria in s.387, I am of the view that there was no valid reason for Ms Ciuzelis’ dismissal. That Greencross did not offer Ms Ciuzelis a position in circumstances where Mr Jones was the architect of the situation that Ms Ciuzelis was in, does not provide a valid reason for dismissal.

[42] Ms Ciuzelis was dismissed on 6 June 2013. At the point she was dismissed, Ms Ciuzelis was absent from the workplace due to an injury and Mr Jones knew that this was the case. Mr Jones also knew that Ms Ciuzelis was cleared to return to work on 10 June 2013. That Ms Ciuzelis had used all of her sick leave, is not evidence that her leave was unauthorised. She had provided a medical certificate explaining her absence and the period of the absence was approximately one month.

[43] Mr Jones disputed Ms Ciuzelis’ claim that the injury occurred at work. He was entitled to do that and to dispute her claim for Workers’ Compensation payments in respect of the injury. However, Mr Jones has provided no credible evidence in relation to the reasons why he did not inform Greencross that Ms Ciuzelis was employed by the business and why he did not include Ms Ciuzelis’ name on the list of employees he provided to Greencross as a potentially transferring employee.

[44] I do not accept his submission that he was told to simply provide a list of employees who were performing work at some particular date. There is nothing in the contract that remotely suggests that this was the case. This contention is arguably contrary to the terms of the contract. Greencross is a large employer with in-house legal expertise, as was apparent from that Company’s involvement in these proceedings in response to the notices to produce documents. It is highly improbable that Greencross would have told Mr Jones to only include employees who were at work on a particular date or during a particular period or to exclude employees who were absent on any form of leave from the list of employees to be provided by Mr Jones as part of the Due Diligence process in connection with the sale.

[45] In the total absence of a credible explanation from Mr Jones about the reason for the dismissal, and in light of his evidence that he could not sack Ms Ciuzelis until her claim for Workers’ Compensation was rejected, I am left with no other possible conclusion but that Mr Jones omitted Ms Ciuzelis’ name from the list of employees provided to Greencross as possible transferring employees under the contract for sale, because she was absent from the workplace. Ms Ciuzelis was absent because of an injury.

[46] I do not accept that the reason for the dismissal was because Greencross did not offer Ms Ciuzelis a position, and that Greencross had discretion not to do so. That submission is at odds with the terms of the contract for sale of the business. It also entirely overlooks the simple facts of the matter which are that Ms Ciuzelis was not on the list of potentially transferring employees because Mr Jones did not put her on that list.

[47] It is also the case that there was a casual employee on the list who started employment on the day after Ms Ciuzelis’ dismissal. This employee is the only employee on the list who has a start date that is consistent with Mr Jones’ evidence that at the point of the sale there was a casual employee doing the work previously done by Ms Ciuzelis, and Ms Ciuzelis’ evidence that a casual employee who was doing her job was offered employment by Greencross.

[48] The fact that this casual employee commenced employment the day after Ms Ciuzelis’ dismissal enhances the unfairness. It is probable that Mr Jones employed the casual employee the day after he dismissed Ms Ciuzelis, and a few days before the date upon which he knew that Ms Ciuzelis was cleared to return to work, and managed to secure employment for the casual employee by including her name on the list he provided to Greencross. Even if (contrary to the evidence of the sale agreement) the casual employee was employed at the point Ms Ciuzelis went on sick leave, Mr Jones’ failure to include Ms Ciuzelis’ name on the list he provided to Greencross, cannot be a valid basis for Ms Ciuzelis’ dismissal.

[49] The reasons given by Mr Jones for Ms Ciuzelis’ dismissal are not sound or defensible. Those reasons are capricious. Accordingly, there was no valid reason for Ms Ciuzelis’ dismissal.

Other criteria

[50] Ms Ciuzelis was notified of the reason for her dismissal, although the reason suffered from the deficiencies detailed above and was not a valid reason. Ms Ciuzelis was not dismissed for reasons relating to her capacity or conduct and whether she was given an opportunity to respond to such reasons is not relevant. There were no discussions relating to the dismissal other than the telephone discussion during which Mr Jones effected the dismissal. The question of whether Ms Ciuzelis was refused a support person is also not relevant.

[51] Similarly, the dismissal did not relate to unsatisfactory work performance and the issue of warnings is not relevant. The employer is a small business and undoubtedly this factor, together with the absence of dedicated human resource management specialists, had an impact on the procedures followed in effecting the dismissal. I note, however, that Mr Jones managed to obtain advice to the effect that he could not dismiss Ms Ciuzelis while she was absent on Workers’ Compensation. Unfortunately, he applied this advice by forming the view that once a claim for Workers’ Compensation was rejected, he could dismiss Ms Ciuzelis with complete impunity. There are no other relevant matters.

[52] On balance, I am satisfied that Ms Ciuzelis was unfairly dismissed and that she should have a remedy for her unfair dismissal.

Remedy

[53] Ms Ciuzelis does not seek reinstatement. Reinstatement is also not possible in circumstances where the business in which Ms Ciuzelis was employed has been sold to a third party. On that basis I am satisfied that reinstatement is not appropriate and that an award of compensation should be made. The remedy of compensation is dealt with in s.392 of the Act in the following terms:

“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), FWA 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 FWA considers relevant.

Misconduct reduces amount

(3) If FWA is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, FWA 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 FWA 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 FWA 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.”

[54] There is no evidence that an order for compensation will affect Mr Jones. He has made no submissions in relation to capacity to pay any amount awarded by the Commission. Ms Ciuzelis has at all times indicated that she seeks the maximum compensation under the Act.

[55] There is no evidence upon which I could conclude that Greencross would not have offered Ms Ciuzelis employment if her name was on the list of transferring employees provided by Mr Jones. Contrary to Mr Jones’ evidence, there was no other employee to which Greencross did not make an offer of employment. An offer was also made to a casual employee who was performing the job that had been performed by Ms Ciuzelis either prior to her dismissal or the day after. Ms Ciuzelis had a medical clearance to return to her full duties before the completion date of the sale and had she been allowed to do so, there is no apparent reason why she would not have been offered employment. I can see no reason why Ms Ciuzelis would not have remained in employment for at least a 12 month period.

[56] Making allowance for contingencies such as that Ms Ciuzelis may have reinjured herself or left employment for some other reason, or that Greencross may have declined to offer her employment, or dismissed her for some reason, I have concluded that for the purpose of calculating compensation it is reasonable to adopt a six month period. In that period, Ms Ciuzelis would have earned an amount of $22,880.00.

[57] In relation to mitigation, I accept that Ms Ciuzelis made reasonable attempts to apply for other positions. Ms Ciuzelis obtained another position on 2 December 2013, just over six months from the date of her dismissal. Ms Ciuzelis was paid two weeks wages in lieu of notice on termination of employment totalling $1,760.00. Ms Ciuzelis received an amount of $2,722.15 in payments from Centrelink. These amounts are deducted. As Mr Jones pointed out, any payments made to Ms Ciuzelis as a result of her Workers’ Compensation claim will be recovered by WorkCover as a result of the rejection of that claim. Accordingly I make no deduction for such amounts. Given that Ms Ciuzelis’ dismissal was not for misconduct, I also make no deduction on that basis.

[58] Accordingly, the amount of $18,397.85 less taxation at the appropriate rate is to be paid to Ms Ciuzelis by Mr Jones within fourteen days of the date of this Decision. An Order to this effect will issue with this Decision.

DEPUTY PRESIDENT

Appearances:

Ms R. Ciuzelis on her own behalf.

Mr J. Jones on behalf of the Respondent.

Hearing details:

2014.

Brisbane:

May 27.

Final written submissions:

28 May 2014

1 Exhibit 1 Statement of Raquel Ciuzelis Annexure “F”.

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