Rohan Veal v Sundance Marine Pty Ltd as trustee for Sundance Unit Trust T/A Sundance Marine

[2013] FWCFB 5205

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Rohan Veal
v
Sundance Marine Pty Ltd as trustee for Sundance Unit Trust T/A Sundance Marine
(C2013/4599)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN
DEPUTY PRESIDENT HAMILTON
COMMISSIONER GREGORY

ADELAIDE, 30 JULY 2013

Appeal against decision [2013] FWC 2653 of Commissioner Bissett at Melbourne on 10 May 2013 in matter number U2013/13624 - deduction for failure to mitigate losses - discretion available to Commission.

[1] This is an application for permission to appeal, and, if that permission is granted, an appeal against a decision of Commissioner Bissett 1 in which she found that the termination of Mr Veal’s employment was unfair and awarded compensation in lieu of reinstatement. The appeal is directed at the quantum of the compensation awarded by the Commissioner.

[2] Section 400 of the Fair Work Act 2009 (the FW Act) requires that the Full Bench must refuse permission to appeal unless it is satisfied that, firstly, it is in the public interest to grant that permission and further, if the appeal is based on an alleged error of fact, that error is a significant error.

[3] Mr Veal contends that the Commissioner’s decision to reduce the quantum of compensation otherwise being considered by 50% because she was not satisfied that he had actively mitigated his losses reflected an error of fact. Secondly, Mr Veal contends that the Commissioner’s decision reflected an error of law in that she failed to follow existing authorities on the question of an applicant had discharged his or her obligations to mitigate loss by establishing a small business instead of finding suitable alternative employment.

[4] The Commissioner’s conclusion with respect to Mr Veal’s mitigation efforts are set out in her decision in the following terms:

“[129] I am not satisfied the Applicant has taken positive steps to mitigate his losses (s.392(2)(d)). He has rejected a number of jobs selling products he ‘was not aware of’ or where he ‘didn’t think there was much future’. Instead he decided to invest in a business that has a debt problem.

[130] I am not convinced that I should accept the Applicant’s decision to invest in a company in debt as an effort by the Applicant to mitigate the loss he suffered. Rather, it seems to me, the Applicant has compounded his loss. Whilst this may turn into a positive investment for him in the future, it suggests a decision not to actively mitigate his loss at the time of his dismissal.”

(References removed)

[5] We are satisfied that these conclusions were open to the Commissioner on the evidence before her and do not disclose any significant error of fact, or an error of law. Had the applicant sought to bring further evidence on the issue, it was open to him to do so, but the limited evidence before the Commissioner means that her findings are clearly sustainable. Further, the decisions of this Commission and its predecessors relative to the recognition of mitigation efforts do not identify or mandate a single specific approach or formula relative to this discretionary issue. There is no error of principle. The Commissioner considered the factors in s.392. Her conclusion with respect to s.392(2)(d) is within the discretion available to the Commission to take account of mitigation efforts in a manner which reflects the evidence about a particular situation.

[6] Consequently, we are not satisfied that Mr Veal has established either an arguable case of error on the part of the Commissioner, or that a grant of permission to appeal is appropriate in the public interest. In these circumstances s.400 requires that permission to appeal is refused. The appeal is dismissed accordingly.

SENIOR DEPUTY PRESIDENT

Appearances:

G Jardine counsel for the appellant.

A Maher counsel for the respondent.

Hearing details:

2013.

Melbourne:

July 17.

1 [2013] FWC 2653

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Rohan Veal v Sundance Marine Pty Ltd as trustee for Sundance Unit Trust T/A Sundance Marine, the Fair Work Commission was asked to consider an appeal against a decision made by Commissioner Bissett. The original matter, U2013/13624, involved a dispute regarding a deduction made from the appellant's entitlement to certain benefits. The case was decided on 10 May 2013 at Melbourne, and the Commission was tasked with assessing the fairness of the deduction, which was made due to the appellant's failure to mitigate his losses.

The primary legal issue before the Commission was whether the deduction from the appellant's entitlement was justified. Specifically, the court needed to determine if the Commission had the discretion to make such a deduction under the relevant legislation. This involved examining the statutory provisions governing the appellant's rights and obligations, as well as the principles of fairness and equity in the context of employment law.

The Commission held that the deduction was indeed justified and that the Commissioner had the discretion to make such a deduction under the relevant statutory provisions. The court found that the appellant had failed to take reasonable steps to mitigate his losses, which was a prerequisite for his entitlement to the benefits in question. Consequently, the deduction was deemed appropriate and in accordance with the law. The Commission's decision was upheld, and the appeal was dismissed.

As a result of the decision, the Commission's original determination, which was to deduct certain benefits from the appellant, remained in effect. The Commission's discretion to make such deductions was affirmed, and the appellant's appeal was unsuccessful. This decision reinforces the principle that claimants must take reasonable steps to mitigate their losses in order to be entitled to certain benefits under employment law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established