Rebecca Whiffen v Sense Rugby Pty Ltd

[2023] FWC 2919

[2023] FWC 2919

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rebecca Whiffen
v

Sense Rugby Pty Ltd

(U2023/6363)

COMMISSIONER MCKINNON SYDNEY, 8 NOVEMBER 2023

Application for an unfair dismissal remedy – compensation ordered

1. Mrs Rebecca Whiffen was dismissed from her employment with Sense Rugby Pty Ltd (Sense Rugby) on 29 June 2023. On 4 October 2023, I decided that Mrs Whiffen had been unfairly dismissed (the Decision).[1] I also determined that reinstatement is inappropriate. The facts of the matter, and my findings, are set out in the Decision.

1. The question now is whether a remedy of compensation is appropriate in all the circumstances of the case, and if so, the amount of compensation.

Remedy

1. I consider that a remedy of compensation is appropriate in the circumstances of this case. Mrs Whiffen has suffered loss, primarily because the process adopted by Sense Rugby in giving effect to her dismissal was unfair.

1. Effect on business viability: Mrs Whiffen invites me to make assumptions about the financial position of Sense Rugby and its directors. She does not have direct knowledge of these matters. The evidence in support of these submissions is largely speculative and to the extent that it is based on apparent facts, is incomplete. Sense Rugby submits that an order for the payment of compensation will affect the viability of its business but has also filed no evidence in this regard. Its submission is directed at the level of compensation sought by Mrs Whiffen rather than any general submission to the effect that it cannot afford to pay compensation.

1. Sense Rugby is a small business. In the past few years, it has experienced financial challenges navigating the COVID‑19 pandemic, staff shortages, increases in the cost of doing business and stagnant funding levels for services supported by the National Disability Insurance Agency. The dismissal of Mrs Whiffen, and this case, have diverted its limited resources away from its core business. However, things appear to be stabilising and the business has recently expanded its revenue generating potential as well as secured funding for a move to new premises. On the materials, I am not satisfied that an order for compensation will have a material effect on the viability of Sense Rugby. No adjustment will be made on that account.

1. Length of service: Mrs Whiffen was employed for approximately 2 years and 3 months. This does not affect the assessment of compensation in any material way.

1. Remuneration lost: I estimate that if Sense Rugby had followed its “Performance and or behavioural improvement plan policy” in relation to the dismissal, Mrs Whiffen would have continued in employment for 6 more weeks. I am not persuaded that her intention was to leave the business so that she could work in her husband’s new business. The evidence is that her intention was to continue working with Sense Rugby but to potentially reduce her days of work from 2024. If she had worked for a further 6 weeks with Sense Rugby, Mrs Whiffen would have earned $7,012.53 gross inclusive of superannuation.

1. Mitigation: Mrs Whiffen has made reasonable efforts to mitigate her loss, although I do not accept that she applied for as many jobs on the Seek.com.au (Seek) platform as suggested. The evidence of this activity begins on 20 July 2023 and ends in October 2023, with the last application through the platform appearing on 11 September 2023. In the first week after her dismissal, Mrs Whiffen was following a lead for a potential role which fell through. The following week appears to have been dedicated to filing this application in the Commission. At or around this time it was also school holidays, and Mrs Whiffen was caring for her children. From 20 July 2023, Mrs Whiffen began applying for jobs through Seek, made her profile available to prospective employers, and engaged in self-education and unspecified networking activities. After a pre-arranged holiday in August 2023, she registered with three employment agencies in September 2023. It was through one of these that Mrs Whiffen was able to find alternative employment, commencing on 5 October 2023. No adjustment in the compensation amount is made in relation to mitigation.

1. Remuneration earned: Approximately 1 month after dismissal, Mrs Whiffen was paid 2 week’s wages in lieu of notice ($2,337.51) including superannuation, as well as her outstanding entitlements. From 5 October 2023 to 8 November 2023, Mrs Whiffen will earn $2,957.04 in wages, including superannuation. This second amount relates to earnings after the anticipated period of 6 weeks’ employment and will not affect the compensation amount.

1. Likely future income: The order for compensation will be payable within 21 days, in recognition of the need to balance Mrs Whiffen’s interests with those of Sense Rugby, a small business. In this period, Mrs Whiffen is likely to earn a further $2,217.78 gross in wages including superannuation, but again this falls outside of the anticipated period of employment and will not affect the amount of compensation.

1. Other relevant matters: There are no other relevant matters in the materials before me. There are a range of matters raised by Mrs Whiffen in her submissions that I do not consider relevant to the question of compensation, including the consequences of financial and business decisions made long before the dismissal, dealings with the Australian Taxation Office, the dentist and Centrelink, investment of time and resources in this claim, and the effect of dismissal on Mrs Whiffen’s wellbeing. Sense Rugby’s speculation about the business being established by Mrs Whiffen and her husband falls into the same category.

1. Contingencies and taxation: Given the short period of anticipated employment, no adjustment is necessary to account for contingencies. There is also no reason to consider that the compensation amount will be unduly taxed. That matter will be left to the parties to deal with in the ordinary way.

1. Misconduct: Mrs Whiffen’s contribution to the circumstances that led to her dismissal were considered in assessing the anticipated period of employment. No further adjustment in the compensation amount will be made.

1. In summary, the compensation amount is determined as follows:

Consideration	Outcome	Gross amount
Remuneration likely to have been received but for dismissal	6 week’s salary inclusive of superannuation	$7,012.53
Less monies earned since dismissal	2 week’s salary inclusive of superannuation	$2,337.51
Other matters: Business viability; length of service; mitigation; contingencies; impact of taxation; misconduct; likely future earnings	Nil	$0.00
Total compensation amount:		$4,675.02 gross

1. I am satisfied that the amount of compensation is appropriate having regard to all the circumstances of the case. It reflects my estimate of Mrs Whiffen’s likely loss had she not been unfairly dismissed. The amount of compensation does not include any amount for shock, distress or the like and does not exceed the statutory cap.

1. I will order Sense Rugby to pay Mrs Whiffen $4,675.02 gross, less applicable taxation (PR768045). No submission has been made in support of payment of any compensation amount by instalments. The amount will be payable within 21 days of this decision.

COMMISSIONER

Appearances:

R Whiffen on her own behalf.

C Parahi for the respondent.

Hearing details:

2023.

Sydney (by video):
November 6.

[1] Whiffen v Sense Rugby Pty Ltd[2023] FWC 2516.

Printed by authority of the Commonwealth Government Printer

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