Robert Goss v Burson Auto Parts T/A Burson Auto Parts

[2015] FWC 745

[2015] FWC 745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Goss
v
Burson Auto Parts T/A Burson Auto Parts
(U2014/1479)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 4 FEBRUARY 2015

Application for relief from unfair dismissal.

Introduction

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged with the Fair Work Commission (the Commission) by Mr Robert Goss (the Applicant) against his former employer Burson Auto Parts (the Respondent) on 1 May 2014.

[2] The Applicant was employed by the Respondent on 26 August 2013 as a Store Manager. He was notified of his dismissal on 17 April 214 and it took effect on the same day.

[3] The F2 form contains a termination letter of 23 April from Richard Rindfleish Regional Manager. It states that the Applicant was terminated because of complaints from customers and declining store performance. The Applicant was provided with four weeks pay in lieu of notice. The Applicant denies the allegations. He says that any complaints were never raised with him. The store, which was at Caringbah, a southern suburb of Sydney, was improving its performance after a difficult period of staff issues and turnover. The Applicant says that there was a lack of co-operation from staff under him from the time of his appointment. He further claims that he attempted to deal with stock shortages and unauthorised discounts but received no support from senior management. He sought 16 weeks pay as compensation.

[4] The Respondent, in its F3 response, states that the Applicant was dismissed because of his poor relationship with customers and his inadequate performance.

[5] The matter was conciliated on Thursday, 3 July 2014 and not settled.

[6] Following non-compliance proceedings on 5 September some submissions and witness statements were lodged although they could hardly be described as comprehensive.

[7] I conducted a programming teleconference on 3 November.

[8] The hearing took place in Sydney on 10 November 2014. It was conducted in a determinative conference format. The Applicant was self-represented. The Respondent was represented by Mr P. Ruffy, its Human Resources Manager and its Regional Manager Mr G. Preedy.

[9] The Applicant relied on oral submissions and evidence and a witness statement filed on 29 September 2014.

[10] The Respondent relied on oral submissions and evidence and the following witness statements filed on 17 October 2014:

● Peter Sleaman, Assistant Store Manager, Penrith store;

● Peter Webb, Store Manager, Broadmeadow store;

● Richard Rindfleish, Regional Manager;

● Martin Saffrett, Store Manager, Botany;

Protection from unfair dismissal.

[11] An order for reinstatement or compensation may only be issued where I am satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

[12] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[13] There is no dispute, and I am satisfied that the Applicant has completed the minimum employment period. The Respondent has some 1100 employees. It was agreed that the Applicant’s salary was $75,000. He clearly comes within s.382(b)(iii). Consequently, I am satisfied that he was protected from unfair dismissal.

Was the dismissal unfair?

[14] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Was the Applicant dismissed?

[15] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act. Section 386 of the Act provides that:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[16] There is no dispute that he was dismissed and that s.385(c) and (d) do not apply.

Harsh, Unjust or Unreasonable

[17] Having dealt with each of s.385(a), (c) and (d) of the Act, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at 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.

Approach of the Commission

[18] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ 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.”

[19] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:

“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”

[20] The Applicant submits the dismissal was harsh, unjust and unreasonable because:

● The Regional Manager turned up at the store unannounced on 17 April and called the Applicant into a meeting;

● No details of customer complaints were given;

● Any complaints would have been from customers who had links to other staff and who were receiving reduced discounts due to changes in policy implemented by the Applicant.

● Any issues about the performance of the store arose from staff turnover. This was made necessary by the inventory shortage problems and dishonesty that the Applicant had found;

● In his submission of 25 September, the Applicant claims $23,538 as compensation. This appears to be based on an annual salary of $102,000. He also says that he obtained new employment on 11 August 2014;

● Exhibit G1, the Applicant’s Employment Agreement confirms his “target remuneration” as $102,237 per annum made up of:

○ $75,000 salary;

○ $ 6,937 superannuation;

○ $ 5,300 short term incentive;

○ $15,000 motor vehicle.

● Richard Rindfleish’s email of 23 April to the Applicant, six days after the dismissal, summarises the allegations. It essentially says the dismissal took place because of the Applicant’s lack of acknowledgement or contrition in response to the customer complaints. Declining store performance is put as a further reason.

[21] The Respondent submits the dismissal was not harsh, unjust or unreasonable because:

● Mr Rindfleish appointed the Applicant to the Store Manager role at Caringbah in August 2013. There were nine employees in the store. Managers are expected to be involved with customers. He says he received adverse comments from customers and staff from a month or two after the Applicant commenced. He assigned Peter Sleaman and Peter Webb to advise and assist the Applicant. The complaints related to the Applicant’s “autocratic and hands -off manner”. Despite counselling, the Applicant took no steps to restore relationships with customers. Between August 2013 and April 2014 profits fell by $80,000 over the previous year. He does not disagree that he decided to dismiss the Applicant during the meeting on 17 April. This was done orally and then confirmed in the 23 April email. He says he arranged the meeting the day before. Since the Applicant’s dismissal there has been substantial improvement in the store’s profitability. He denies that there was any problem with the stock inventory when the Applicant was appointed.

● Mr Saffrett was the previous Caringbah Manager before transferring to Botany. His evidence was that the store was successful with good customer relations when he left. He received complaints from customers and staff. He visited the store six or seven times to assist/advise the Applicant to no avail.

● Mr Sleaman’s evidence was that he had visited the store in late March 2014, at Mr Rindfleish’s request. The Applicant was negative about suggestions to improve systems and procedures made by Mr Sleaman.

● Mr Webb also visited the Caringbah store twice whilst the Applicant was employed. He was critical of the Applicant’s attitude to other staff and customers. He found the Applicant aloof and non-communicative with other staff.

Valid Reason - s.387(a)

[22] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench said ‘In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable’.

[23] Northrop J in Selvachandranv Peteron Plastics Pty Ltd (1995) 62 IR 371 said:

“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 ...”

[24] In Parmalat Food Products Pty Ltd v Wililo, [2011] FWAFB 1166, the Full Bench held:

“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.”

[25] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered under s.387:

“[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v Commonwealth – that s.170DE(2) by its operation could render invalid a reason that would otherwise have been a valid reason. The fact that some dismissals are “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” means that the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class of dismissals where there is no “valid reason” for the dismissal.

[21] Section 387 specifies a range of matters that must be considered in each case. Section 387(h) requires consideration of “any other matters that FWA considers relevant”. In any given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or unreasonable” and thus are “relevant matters” that must be considered pursuant to s.387(h).

[22] Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter greatly. That will tend to be so when the particular misconduct, shorn of the personal circumstances of the employee and the broader context beyond the particular acts or omissions that are said to constitute the misconduct, is clearly a matter that a reasonable employer is entitled to take seriously. This is such a case.

...

[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1). ”

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.
. . .

[58] 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.”

[26] I respectfully adopt this approach.

Finding as to Valid Reason

[27] I have considered the evidence provided by the Respondent and I am satisfied that there may have been some deficiencies in the Applicant’s management style. However, I am not satisfied that there was a valid reason for his dismissal.

[28] The Applicant’s account of the 17 April meeting was not really challenged in cross-examination. He admitted to using intemperate language about customers in the heat of the moment. The action to dismiss him on the spot seems to me out of proportion to any deficiencies that had been identified.

[29] It is true that the Applicant had only eight months employment with the Respondent. However, at 61 years of age, he had many years experience in management positions in the industry. There were many alternative courses of action other than instant dismissal. There had been a meeting of staff at the Caringbah store on 26 February attended by Mr Rindfleish but there is no suggestion that the Applicant was put on notice about his performance. Moreover, there is no suggestion that he was advised of the issues to be raised at the 17 April meeting prior to it. The Applicant disagreed with the complaints put to him about customers but it does not appear that he refused to comply with a reasonable instruction as the Respondent submits. (See transcript PN 249)

[30] Mr Rindfleish gave extensive oral evidence concerning complaints from customers and his efforts to get the Applicant to address them properly. He also provided a credible summary of the decline in profits during the Applicant’s tenure. However, I find that these issues were not put to the Applicant, so that it was clear that the consequences was likely to end in dismissal.

[31] Mr Rindfleish’s evidence was that he had intended to give the Applicant four weeks to “lift his game” and properly respond to the allegations. This did not happen because of the Applicant’s threat to sue customers. (See transcript PN 427 - 446) My view is that the four week “show cause” period would have been the appropriate course of action.

[32] Mr Sleaman and Mr Saffrett gave oral evidence. Mr Webb was not available for cross-examination. Their evidence supported a conclusion that there were some difficulties with the Applicant’s style but it does not change my view that immediate dismissal was inappropriate in the circumstances.

[33] In all the circumstances I find that there was not a valid reason pursuant to s.387(a), for the dismissal of the Applicant. In my view, some lesser penalty would have been appropriate.

Notification of a Valid Reason - s.387(b)

[34] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”   Ibid at 151.

[35] I find that the Applicant was not notified in accordance with s.387(b). I accept that he knew Mr Rindfleish was coming to the 17 April meeting. However, the evidence is that he was not aware that the meeting was a disciplinary meeting or that it could lead to his dismissal. The decision to dismiss does not appear to me to be justified by the events of the meeting. The Applicant should have been aware that the Respondent had concerns about his performance and that of the store, but he was entitled to be surprised that immediate dismissal would result.

Opportunity to Respond s.387(c)

[36] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.

[37] It follows that the Applicant had no real opportunity to respond.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[38] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[39] There was no breach of this section but the Applicant had no opportunity to seek assistance given the nature of the 17 April meeting.

Warnings regarding unsatisfactory performance - s.387(e)

[40] There were some generalised meetings and support provided by other managers to the Applicant, but there was not a warning about unsatisfactory performance within s.387(e).

Impact of the size of the Respondent on procedures followed - s.387(f)

[41] Burson is a relatively large, well resourced employer. I find that the size of the employer’s enterprise did not impact on the procedures followed in effecting the dismissal.

Absence of dedicated human resources management specialist/expertise on procedures

followed - s.387(g)

[42] Burson had human resources specialists available to assist.

Any other matter that the FWC considers relevant

[43] Section 387(h) allows the Commission to consider any other matters it considers relevant. These must be considered in the context of the object of Part 3 - 2 of the Act contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and the employee concerned”.

[44] I do not find that these are matters that should be taken into account.

[45] For the above reasons, in addition to the finding that there was no valid reason for dismissal, I find that the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, I find that the dismissal was unfair within the terms of s.385.

Compensation

[46] Having found that the dismissal was unfair, I now turn to the appropriate remedy.

[47] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

“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.”

[48] The Applicant does not seek reinstatement and it would not be appropriate given the breakdown that has occurred and the supervisory position that he held.

[49] Section 390(3)(b) provides that I may only issue an order for compensation to the Applicant if it is appropriate in all the circumstances.

[50] I have found that the applicant has been unfairly dismissed and that reinstatement is not appropriate in all the circumstances. I am satisfied that an order for compensation should be made.

[51] The Applicant obtained alternative employment on 11 August 2014. Therefore, taking into account his one month pay in lieu of notice, the period of lost wages is approximately three months.

[52] Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered provides:

“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.”

[53] The method for calculating compensation under s.392 of the Act was dealt with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge,[2013] FWCFB 431 (Bowden). In that decision the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket, (1998) 88 IR 21 and Ellawala v Australian Postal Corporation, Print S5109 (Ellawala). I have adopted the methodology utilised in Bowden in determining the amount of a payment of compensation.

[54] I will now consider each of the criteria in s.392 of the Act.

Remuneration that would have been received: s.392(2)(c)

[55] It is apparent, from the abovementioned cases that all regular components of remuneration are to be included in the calculation. I have therefore used the annual figure of $87,237 based on the components set out in [20] above, less the motor vehicle.

[56] I now determine the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had he not been dismissed.

[57] Given the issues of the applicant’s management style and the performance of the store, it is difficult to believe the Applicant’s employment would have continued for longer than six months if he had not been dismissed. The remuneration he would have received is therefore $43,618.50.

Remuneration earned: - s.392(2)(e)

[58] As I have already noted, the Applicant obtained alternative employment in August 2014. This was also in the automotive industry. There was no suggestion by the Applicant that it is at a lesser level of remuneration. The compensation is to be reduced by 50% on this account, thus leaving $21,809.25.

Income likely to be earned: - s.392(2)(f)

[59] This matter is not relevant.

Other matters: - s.392(2)(g)

[60] The Commission has allowed for a deduction for contingencies in a number of cases. Whether this is done depends on the circumstances of the case. In this case, the evidence shows that there were difficulties with the Applicant’s management style and the store’s performance. I will make a deduction on this ground so that the compensation amount becomes $15,000.

Viability: - s.392(2)(a)

[61] This matter is not relevant.

Length of Service: - s.392(2)(b)

[62] This was not a factor in this case.

Mitigating efforts: - s.392(2)(b)

[63] In considering whether the Applicant has taken steps to mitigate the loss suffered as a result of the dismissal I should take into account whether the Applicant acted reasonably in the circumstances, (Ellawala).

[64] I find that the Applicant has made efforts to mitigate his loss suffered as a result of the dismissal.

Misconduct: s.392(3)

[65] No adjustment to the compensation is appropriate on this ground.

Shock, Distress: s.392(4)

[66] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap: s.392(5)

[67] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the Applicant, or to which the Applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or half the amount of the high income threshold immediately prior to the dismissal.

[68] The high income threshold component is $66,500.

[69] The amount of compensation I will order does not exceed the compensation cap.

[70] I will order the Respondent to pay to the Applicant an amount of $15,000.

Conclusion

[71] I am satisfied that the Applicant was protected from unfair dismissal, and that the dismissal was unfair and a remedy of compensation is appropriate. In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.

[72] An order (PR560739) will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

R. Goss, self represented Applicant;

P. Ruffy, with G. Preedy for the Respondent.

Hearing details:

2014

Sydney:

November 3 (telephone conference), 10.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR560580>