Shane Di Gioacchino v Kmercial Contractors Pty Ltd
[2017] FWC 6323
•29 NOVEMBER 2017
| [2017] FWC 6323 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shane Di Gioacchino
v
Kmercial Contractors Pty Ltd
(U2017/5209)
| Commissioner McKinnon | MELBOURNE, 29 NOVEMBER 2017 |
Application for an unfair dismissal remedy - compensation.
On 12 October 2017, I found that the dismissal of Mr Shane Di Gioacchino (the Applicant) by Kmercial Contractors Pty Ltd (the Respondent) was unfair and that some compensation was appropriate in the circumstances (the Decision).[1]
This decision deals with the question of compensation.
Compensation
Section 392(2) of the Act deals with how compensation is to be assessed in connection with unfair dismissal. The established methodology was considered in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc (Bowden).[2] I adopt and apply the approach set out in that decision.
Business viability (s.392(2)(a))
There is no evidence to suggest that an order requiring the Respondent to pay compensation would impact on the viability of its enterprise. I find that this factor does not warrant any adjustment in the amount of compensation.
Remuneration that would have been received (s.392(2)(c))
In my view, the Applicant would have remained in employment with the Respondent for approximately three months had he not been dismissed. In arriving at this conclusion, I have had regard to the tone of communications between the parties in the period leading up to the dismissal, the Applicant’s length of service, the nature of the industry he worked in and his close friendship with Mr Hickson which presented an opportunity for ready alternative employment if needed.
On the materials before me, I find that the Applicant’s weekly earnings were $2,040.55 gross per week plus superannuation.[3] The Applicant would have earned $26,527.15 gross in the 13 weeks after dismissal ($2,040.55 x 13 = $26,527.15).
Remuneration earned (s.392(2)(e)) and s.392(2)(f))
The Applicant provided payslips from the Respondent and Prime Roofing as well as bank statements confirming remuneration earned in the amount of $21,838.95 plus superannuation in the 13 week period after dismissal.
Accordingly, the calculation of compensation is adjusted to put the Applicant in the position he would have been, but for the dismissal, as follows:
(a) $26,527.15 (anticipated earnings);
(b) Less $21,838.95 (remuneration earned);
(c) Subtotal = $4,688.20 gross.
Length of service (s.392(2)(b))
The Applicant had approximately 2 years’ service with the Respondent. This does not warrant any adjustment in the amount of compensation in this case.
Mitigation efforts (s.392(2)(d))
The Applicant commenced employment with Prime Roofing on 9 June 2017, approximately three weeks after his dismissal. The Applicant made reasonable efforts to mitigate his loss from approximately June 2017 and was immediately successful. Remuneration earned as a result has been taken into account and the amount of compensation is not adjusted further in this regard.
Other matters (s.392(2)(g))
There is no basis to discount the amount of compensation for contingencies in this case where the actual earnings for the anticipated period of employment are known.
Misconduct (s.392(3))
The Applicant gave evidence about transactions on his account on 11 and 12 May 2017, related to his earlier evidence that he had been sick at home “all day” on 11 May 2017. There was no contest that he left home on 12 May 2017, at least to attend the doctor.[4]
The transactions appear to show two ‘in person’ transactions from the Applicant’s bank account on 11 May 2017. One was an amount of $58.40 at “APCO Easy Shop” and the other was $202.50 at an “Ecash POSpoint”, which the Applicant agreed was a system designed for gaming venues. The Applicant said the transactions were both carried out by his mother. He explained that APCO Easy Shop was a service station and his mother also withdrew money from the Tigers Club using the Ecash POSpoint to spend at Spotlight, as there was no ATM nearby. He was quite specific about what she needed to buy at Spotlight on that day for the coming weekend away.
The evidence of the Applicant on this issue is not without doubt. It is given in the context where there are multiple other transactions on his bank statement related to his playing “the pokies”, including three identical transactions three days earlier on 8 May 2017. The amount is the standard amount he said he withdrew to play the pokies ($200, plus a withdrawal fee). Three days later, on 15 May 2017, his bank statement shows an EFTPOS transaction at Spotlight.
It makes little sense that his mother went to the Tigers Club to withdraw money from the Applicant’s account, using a system designed specifically to limit gambling withdrawals, before going to Spotlight. All she needed to do was go directly to Spotlight and pay with the card over the counter. If she also needed cash out, it is not clear why she could not have obtained it at the service station she was also said to have visited that day.
Unlike the other transactions, the Applicant had a reason for not wanting the transactions on 11 and 12 May 2017 to show that he was not at home sick (except when he went to the doctor) on those days. He had called in sick and had been paid sick leave for each of those days.
The evidence is relevant to whether there was misconduct that contributed to the decision to dismiss him. On balance, I find that the Applicant went to the Tigers Club on 11 May 2012. He was not at home “all day” either on that day or on 12 May 2017, when he attended both his doctor and a restaurant for his sister’s birthday later in the evening. These findings cast doubt on whether the Applicant was unable to work because of a personal injury or illness during the entire period from 11 to 12 May 2017. This does not overcome my earlier finding on the evidence that there was no valid reason for dismissal, but it does reinforce my view that the Applicant played a part in his demise. Accordingly, the amount of compensation is reduced by 10%.
Shock, Distress (s.392(4))
The amount of compensation does not include a component for shock, humiliation or distress.
Compensation cap (s.392(5)&(6))
The amount of $4,219.38 is less than the compensation cap of 26 weeks’ pay and no further adjustment is necessary.
Instalments (s.393)
No application was made by the Respondent to pay any compensation awarded by instalments and no order will be made to that effect.
Conclusion on remedy
In my view, the compensation figure arrived at in this case does not yield an amount that is clearly excessive or clearly inadequate.
For the reasons set out above, I am satisfied that a remedy of compensation in the amount of $4,219.38 plus superannuation in favour of the Applicant is appropriate in the circumstances of this case. The amount is a gross amount subject to applicable taxation.
An order [PR598189] will be issued to that effect.
COMMISSIONER
Appearances:
G Dircks for the Applicant.
W Spargo for the Respondent.
Hearing details:
2017.
Melbourne:
August 23.
[1] [2017] FWC 5289
[2] [2013] FWCFB 431
[3] Form F3 – Employer’s Response; Applicant’s Outline of Submissions; Respondent’s Outline of Submissions; Payslip from Kmercial dated 18/5/17, Exhibit A1.
[4] PN70, Transcript 4 August 2017
Printed by authority of the Commonwealth Government Printer
<Price code A, PR598188>
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