Ross Hemmingson v Note Printing Australia Limited

[2017] FWC 3835

[2017] FWC 3835

FAIR WORK COMMISSION

FURTHER DECISION IN REGARD

TO REMEDY

Fair Work Act 2009
s.394—Unfair dismissal

Ross Hemmingson
v
Note Printing Australia Limited
(U2016/10456)

COMMISSIONER CRIBB MELBOURNE, 20 JULY 2017

Application for relief from unfair dismissal - compensation in lieu of reinstatement.

[1] This decision concerns final determination of an amount of compensation, in lieu of reinstatement, to be ordered by the Fair Work Commission, pursuant to section 392 of the Fair Work Act 2009 (the Act). It follows the decision 1 issued on 21 June 2017 in which the Commission found that Mr Hemmingson was unfairly dismissed. In that decision, the Commission was unable to determine an amount of compensation as there was insufficient material before the Commission at that time.2

[2] Accordingly, the parties were requested to provide the Commission with an agreed weekly rate of pay for Mr Hemmingson. Mr Hemmingson was requested to provide documentary evidence in relation to his efforts to obtain alternative employment and, if alternative employment had been obtained, when it was obtained and the amount that Mr Hemmingson has earned to date. As well, if the parties wished, they were at liberty to file submissions in relation to section 392(2)(g). 3

[3] The Respondent provided details of Mr Hemmingson’s weekly pay on 7 July 2017 with the Applicant providing the requested information on the same day. On behalf of the Applicant, draft calculations in regard to compensation were provided on 20 July 2017.

Section 392(2)(c) - remuneration would have received

[4] The Respondent advised that Mr Hemmingson had been paid fortnightly and that, within each fortnightly pay, he received two different weekly pay amounts. The average of the two weekly amounts was $2001.48. As Mr Hemmingson’s period of anticipated employment has been found to be seven months (5 August 2016 - 4 March 2017), I find that this results in a provisional amount of $60,711.56.

Sections 392(2)(d), (e) and (f) - efforts to mitigate loss, remuneration earned and income reasonably likely to be earned

[5] With respect to Mr Hemmingson’s efforts to mitigate his loss, documentation was provided which showed that, between August 2016 and October 2016, Mr Hemmingson either applied for/made enquiries about work/attended an interview in relation to seven positions. It appears that Mr Hemmingson subsequently obtained paid employment with two companies with the latter appearing to have commenced in January 2017 and which seems to be ongoing.

[6] The jobs that Mr Hemmingson applied for were exclusively printing positions rather than a mixture of printing and non-printing positions. The previous submissions of the Respondent on this point are acknowledged. However, on the basis of the additional material supplied, on balance, I am satisfied that Mr Hemmingson made reasonable attempts to mitigate his loss.

[7] The period of anticipated employment is from 5 August 2016 to 4 Match 2017. This is the period for which remuneration earned is deducted from the provisional amount. From the documentation provided, it is to be assumed that the earnings from Toll occurred prior to Mr Hemmingson’s current employment. This means that the sum of $3278 needs to be deducted from the provisional amount. In addition, moneys earned from the current employment are to be deducted for the period of 23 January 2017 to 4 March 2017. This is a period of approximately 6 weeks and Mr Hemmingson’s weekly rate of pay seems to be $880 per week. This amounts to $5280. Therefore, the total amount to be deducted for remuneration earned is $8558. This results in a provisional amount of $52,153.56.

Section 392(2)(g) - any other matter

[8] Neither party made submissions in relation to this section.

Section 392 (3) - misconduct

[9] The Commission has previously found that the amount that would otherwise be ordered will be reduced by 50%. This results in a provisional amount of $26,076.78.

Contingencies

[10] In the first decision, it was not proposed to make a deduction for contingencies as the anticipated period of employment had passed. 4 This results in a provisional amount of $26,076.78.

Section 392(5) - compensation cap

[11] Since the provisional amount of compensation ($26,076.78) is less than the amount provided for in section 392(5), I make no further reduction for that reason.

Conclusion

[12] Therefore, it is considered appropriate to make an order that Note Printing Australia Limited pay $26,076.78 (gross), less taxation as required by law, in compensation to Mr Hemmingson in lieu of reinstatement, within 21 days of the date of this decision.

[13] An order 5 to this effect will be issued separately.

 1   [2017] FWC 3063

 2   Ibid at [110] and [112] - [113]

 3   Ibid at [120]

 4   Ibid at [117]

 5   PR593492

Printed by authority of the Commonwealth Government Printer

<Price code A, PR594731>