SB v FC Pty Ltd
[2010] FWA 7872
•12 OCTOBER 2010
[2010] FWA 7872 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
SB
v
FC Pty Ltd
(U2010/282)
COMMISSIONER HAMPTON | ADELAIDE, 12 OCTOBER 2010 |
Application for unfair dismissal remedy.
[1] Ms SB (the applicant) has made an application to Fair Work Australia claiming that her dismissal on 12 February 2010 by FC Pty Ltd (the respondent or the employer) was unfair.
[2] In June 2010 a determinative conference was conducted in this matter as contemplated by s.398 of the Fair Work Act 2009 (the Act). 1 For reasons set out in a decision issued by Fair Work Australia on 16 June 2010, I determined that the applicant had been unfairly dismissed and that compensation was to be awarded.2
[3] The approach to compensation was set out in the earlier decision as follows:
“[99] I find that compensation is appropriate and should comprise a payment by the respondent equivalent to five weeks wages calculated at 40 hours per week at the rate payable upon termination, less the remuneration received by the applicant from her new employment in the five week period following her dismissal. That payment, less any required deduction of taxation, is to be made within 14 days of this decision, allowing for the fact that the applicant will need to provide evidence of her post dismissal remuneration.
[100] An order to that effect has been issued directly to the parties.
[101] Liberty is granted to apply to Fair Work Australia in the event that the parties cannot resolve the final dollar value of the compensation payment within the above parameters.”
[4] In the earlier determinative conference the applicant did provide some evidence as to her post dismissal earnings. However, as this was not clear and lacked verification, the process set out in the earlier decision was required in order to ascertain the appropriate dollar figure for the compensation.
[5] Unfortunately, despite numerous attempts, the parties were unable to resolve the precise final dollar value of the compensation as determined. In mid August 2010, the applicant applied to have the matter finally determined by Fair Work Australia. A further determinative conference has now been conducted and the applicant has provided details of her post dismissal earnings and some supporting documentation.
[6] I have now determined the compensation figure based upon that material and the submissions made by the parties in this matter.
[7] The five weeks of wages projected forward from the date of dismissal does not appear to be in dispute. The amount of $3,316.90 reflects the projected 40 hours per week at the relevant rate of pay at the time of dismissal.
[8] Based upon the material now before me concerning the post dismissal earnings in that same five week period, I find that an amount of $910.11 was received by the applicant from her alternative employment.
[9] Accordingly, $2,406.79 by way of compensation is to be paid by the respondent to the applicant. That payment, less any required deduction of taxation, is to be made within 14 days of this decision.
[10] An order to that effect has been issued directly to the parties.
COMMISSIONER
Appearances:
D Blairs of the Shop, Distributive and Allied Employees Association for the applicant.
AD, Managing DirectorwithJD for the respondent.
Hearing details:
2010
Adelaide
September 16
Written submissions:
2010
June 21
August 12, 16, 17
September 23
1 Given the confidential nature of the conference as specified in the Act I have not directly identified the parties or the witnesses in this decision. I consider that the private nature of the conference should be reflected into the decision.
2 [2010] FWA 4179 as issued on 16 June 2010.
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