Soosan Kurian v Camp Australia Services Pty Ltd T/A Camp Australia

[2014] FWC 3342

[2014] FWC 3342

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Soosan Kurian
v
Camp Australia Services Pty Ltd T/A Camp Australia
(U2013/12334)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 20 MAY 2014

Application for relief from unfair dismissal - compensation ordered.

[1] On 2 April 2014, I determined that Ms Soosan Kurian had been unfairly dismissed by Camp Australia Services Pty Ltd (Camp Australia) and determined to award Ms Kurian compensation 1. The amount of compensation to be paid to Ms Kurian was equal to the compensation cap.2

[2] I provided the parties with an opportunity to agree on the amount to be paid but no agreement was reached.

[3] Section 392(5) of the Fair Work Act 2009 provides as follows:

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.

Note: subsection 392(5) indexed to $64,650 from 1 July 2013

(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.

[4] Regulation 3.06 of the Fair Work Regulations 2009 provides as follows:

3.06 Remedy—compensation (amount taken to have been received by the employee)

For paragraph 392(6)(b) of the Act:

(a) an employee who was on leave without pay for any part of a period is taken to have received the remuneration that the employee would ordinarily have received during the period of leave if the employee had not been on leave without pay; and

(b) an employee who was on leave without full pay for any part of a period is taken to have received the remuneration that the employee would ordinarily have received during the period of leave if the employee had not been on leave without full pay.

[5] Ms Kurian submitted that the calculation should be based on her last pay. She submitted that based on that pay her daily rate was $227.81 and therefore the amount of compensation should be $29,614.87. Camp Australia submitted that an average amount earned by Ms Kurian in the previous 12 months was $2066.27 per fortnight and therefore the amount of compensation should be $26,861.51.

[6] The period of 26 weeks immediately before the dismissal commenced on 18 January 2013. Ms Kurian was not at work from 17 May 2013 until the date of her dismissal on 19 July 2013. This was because she was on approved unpaid sick leave and when she returned on 24 June 2013 she was not provided with work.

[7] Ms Kurian earned $17,798.15 plus $1,593.61 superannuation in the period from 18 January 2013 until 17 May 2013. Ms Kurian’s wage varied from week to week due to varying hours allocated to staff meetings and administration hours.

[8] I consider that the appropriate means to calculate what Ms Kurian would have earned in the period from 17 May 2013 until the date of her dismissal is to average the amount she earned in the period 18 January 2013 to 16 May 2013.

[9] In this period she on average earned $1,046.95 per week plus $93.74 superannuation. Therefore in the period 17 May 2013 until 19 July 2013 she would have earned $9,422.55 plus $843.66 superannuation.

[10] Therefore the total that Ms Kurian would have earned in the six months prior to her dismissal was $27,220.70 plus $2434.27.

[11] I therefore order that Camp Australia pay Ms Kurian $27,220.70 and Ms Kurian’s superannuation fund $2,434.27 within 21 days of this order.

DEPUTY PRESIDENT

 1   [2014] FWC 2168.

 2 See s.392(5) of the Fair Work Act 2009.

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