Stefania Taverna, Karlee Hunt, Teresa Delfino v Melbourne College of Hairdressing Beauty and Natural Medicine Pty Ltd
[2023] FWC 761
•4 APRIL 2023
| [2023] FWC 761 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stefania Taverna, Karlee Hunt, Teresa Delfino
v
Melbourne College of Hairdressing Beauty and Natural Medicine Pty Ltd
(U2022/5353, U2022/5358, U2022/5362)
| COMMISSIONER BISSETT | MELBOURNE, 4 APRIL 2023 |
Application for an unfair dismissal remedy
Ms Stefania Taverna, Ms Karlee Hunt and Ms Teresa Delfino (the Applicants) have each made an application in which they seek a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). The Applicants were employed by Melbourne College of Hairdressing Beauty and Natural Medicine Pty Ltd (the Respondent).
I issued Directions seeking submissions as to the hearing of these matters. The Applicants’ submit that hearing the matters jointly would assist in the efficient resolution of their claims that are substantially similar and are against the same Respondent.[1] They further submit that the matters were joined on appeal in earlier proceedings. The Respondent submitted that the Applicants had engaged in collusion, however provided no evidence to me of this. I determined to hear the matters jointly.
MATTER HISTORY
When the applications were made in May 2022 the Respondent raised jurisdictional objections including that the Applicants did not meet the minimum employment period, had not been dismissed, and if they had been dismissed, that the applications were out of time. Deputy President Young dismissed the minimum employment period and no dismissal jurisdictional objections and granted an extension of time for each application (the jurisdiction decisions).[2] The Deputy President’s decisions were affirmed on appeal.[3]
The matters were then referred to conciliation by a staff conciliator held on 17 January 2023. That conciliation failed to resolve the disputes. The matters are therefore with me for the determination of the merits of the claims and determination of any applicable remedy.
RESPONDENT PARTICIPATION
At the conciliation, the Respondent identified that the company had been under External Administration that ceased on 18 January 2023 and that there is a Deed of Company Arrangement (DOCA) in place until December 2024. On 20 January 2023 the Commission received correspondence from Mr Paul Tanna of Worrells (the company Administrator) confirming that a DOCA had been entered into. This email requested that the Commission stay proceedings against the Respondent due to the operation of the DOCA. On 23 January 2023 the Commission received correspondence indicating that the Administrator would not be attending the Mention I had scheduled for the following day.
At the Mention on 24 January 2023 I heard from the parties as to the appropriate scheduling and next steps in the matter having regard to the Administrator’s correspondence. The Administrator did not attend the Mention although a representative of the Respondent did attend. The Respondent indicated that its position was that the proper approach would be for the Applicants to make any claims they may have to the Administrator. The Applicants’ submissions were that the email of 20 January 2023 did not constitute an application to stay the matter in the proper form and compliance with the Fair Work Commission Rules 2013 should not be waived.
Arising from the Mention I issued Directions that required that any stay application be filed by 4.00 pm 30 January 2023 and sought written submissions in favour of or opposed to hearing the applications concurrently.
No application seeking a stay of proceedings was received by the Commission but on 31 January 2023 the Commission received an email from the Respondent which said:
Commissioner Bissett,
I am advising the commissioner and the other parties relating to the matter that Melbourne College of Hairdressing Beauty and Natural Medicine Pty Ltd can no longer afford to maintain legal representation or advice in regards to the matter. There will be no further representation for or from Melbourne College of Hairdressing Beauty and Natural Medicine Pty Ltd at future hearings.
As already advised by the administrator the applicants can lodge any future claims with the administrator to paid under the DOCA.
Regards
Fred Garai
CEO
Director of Studies
In response, my chambers sent the following correspondence at 9.00am on 1 February 2023:
Dear Mr Garai,
Your email below has been brought to the attention of Commissioner Bissett.
The Commission understands your email to mean that you do not intend to participate any further in the hearing of the applications in relation to unfair dismissal set out in the subject line of this email.
You need to be aware that, should the Respondent choose not to participate and/or file any material in accordance with directions issued by the Commission, the Commissioner will make a decision based on the uncontested evidence of the Applicants. If this is the case you also need to be aware that the Commissioner may make orders against you which you will be required to comply with.
If Commissioner Bissett has misunderstood your intention your advice to this effect would be appreciated.
Even if the Respondent chooses not to participate you will still be copied into all correspondence in relation to the hearing of the applications.
Your confirmation of your intention would be appreciated by 4.00pm Thursday 2 February 2023.
[signature]
Mr Garai replied to my chambers at 3.54pm on 1 February 2023:
Good afternoon,
Thankyou for your email detailing the position of the commissioner in regard to the decision that has been communicated. It is felt that attending future hearings is a waste of time as our evidence has never been heard at previous hearings when applicants evidence which has never addressed the three points directed by the pervious deputy presidents was only about the underpayments and not the wrongful dismissal.
All through the wrongful dismissal process the college as an employer has been presumed guilty even when evidence was presented to show the applicants had resigned. There has been no justice for the respondent when the applicants have colluded with their evidence and where warned by the deputy president and they still colluded and no other actions were taken against them. The applicants perjured themselves when giving witness statements about not being paid any monies for the underpayments even when the respondent had provided bank records and pay slips that the underpayments had been paid to their bank accounts.
All we are seeing is the FWC demonstrating procedure without fairness to the respondent and certainly no consideration of natural justice based on examining the evidence that had to be provided to respond to the three points of law directed by DP Young.
[signature]
Despite the advice from the Respondent my chambers have copied the Respondent into all directions and correspondence. The Respondent has not availed itself of any opportunity to put submissions, evidence or further applications to the Commission as to the conduct of the applications.
As no further material was provided from the Respondent, and with the consent of the Applicants, I have determined the matter on the basis of the submissions and statements filed by the Applicants.
APPLICANTS’ EMPLOYMENT
Ms Delfino commenced employment with the Respondent in 2008, Ms Taverna commenced employment with the Respondent in 2011 and Ms Hunt commenced employment with the Respondent in 2015. Each was employed as a Trainer/Educator.
Ms Taverna raised her concerns about underpayment with the Respondent on 4 September 2021 and again on 15 September 2021. On 15 September 2021 Ms Delfino also emailed the Respondent with her underpayment concerns. Having not heard from the Respondent, Ms Taverna contacted the Fair Work Ombudsman on 29 September 2021. Ms Delfino and Ms Hunt also made claims to the Ombudsman.
On 12 October 2021 the Respondent met with the three Applicants in relation to their underpayment complaints. At that meeting the Applicants advised the Respondent that they were not prepared to accept further training classes until they were paid the correct amount under the relevant Award.
The parties participated in five meetings seeking to resolve the underpayment claims and various proposals were exchanged through October and November 2021.
On 9 December 2021 the Respondent sent an email to students of the College. This email said, in part,
…Teri, Stefanie and Karlee will not be returning to MCOHB, they have decided to take another path in their lives, because of their absence we have been left short of suitable trainers to work with you to complete your learning journey…
This email first became known to the Applicants on 16 December 2021. On that day the Applicants sent a joint email to the Respondent enquiring about the status of their employment given the email that had been sent to their students.
Deputy President Young found that the date of effective dismissal of each Applicant was at some point in the period between 9 December 2021 - 16 December 2021.[4]
WERE THE APPLICANTS UNFAIRLY DISMISSED?
Preliminary matters
I am satisfied that the Applicants have each made their applications within the period provided for in s.394(2) of the FW Act[5] (s.396(a)), that each is protected from unfair dismissal (see paragraphs [27]-[30] below) and that the dismissals were not a result of genuine redundancies (s.396(d)).
As the Respondent has failed to comply with the directions of the Commission it is not possible for me to make a finding of whether or not the Respondent is a small business employer such that I cannot make a determination as to whether the Small Business Fair Dismissal Code (SBFDC) applies. However, in the jurisdiction decisions of Deputy President Young, whilst the matter was not clear, she proceeded on the basis that, at the time of dismissal of the Applicants, the Respondent had 14 employees and therefore was a small business.[6] I have adopted the Deputy President’s finding for the purpose of this decision.
If the Deputy President was correct, the SBFDC applies to the termination of the Applicants’ employment and it is necessary that I, first of all, decide if the dismissals were consistent with the SBFDC.
The SBFDC states that:
Summary Dismissal
It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.
Other Dismissal
In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.
The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.
The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.
Procedural Matters
In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.
A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.
In the jurisdiction decisions Deputy President Young found that the Applicants had not resigned and that, by its email of 9 December 2021 to students that advised that the Applicants “had decided to take another path in their lives…” the Respondent terminated the Applicants’ employment.
Relying on the factual matters and findings in the jurisdiction decisions I am satisfied that the Applicants were not summarily dismissed for conduct “sufficiently serious to justify immediate dismissal” such that the summary dismissal provisions of the SBFDC do not apply. Nor were the Applicants “warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement” in their conduct or capacity, given an opportunity to respond or an opportunity to improve their performance such that the “Other dismissal” provisions of the SBFDC would apply.
For these reasons I am satisfied that the dismissals were not consistent with the SBFDC (s.396(c)).
Were the Applicants protected from unfair dismissal?
Section 382 of the FW Act states that a person is protected from unfair dismissal if the person has completed the minimum employment period, and a modern award covers the employee, or an enterprise agreement applies to the employee’s employment, or the employee earns less than the high income threshold.
In the jurisdiction decisions the Deputy President found that each of the Applicants had completed the minimum employment period and I adopt that finding.
On the basis of the description of each of the Applicants’ employment as “Trainer/Educator” and the terms of the Educational Services (Post Secondary Education) Award 2020 (the 2020 Award). I am satisfied that each was covered by a modern award.
In these circumstances I am satisfied that each Applicant is protected from unfair dismissal.
Were the Applicants unfairly dismissed?
Section 386 of the FW Act states:
386 Meaning of dismissed
(1)A person has been dismissed if:
(a)the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2)However, a person has not been dismissed if:
(a)the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b)the person was an employee:
(i)to whom a training arrangement applied; and
(ii)whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c)the person was demoted in employment but:
(i)the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the demotion.
(3)Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
I am satisfied, on the basis of the findings in the jurisdiction decisions, that each of the Applicants was dismissed. I have found above that the dismissals were not a case of genuine redundancy and that the dismissals were not consistent with the SBFDC.
It therefore requires that I determine if the Applicants’ dismissals were harsh, unjust or unreasonable. Section 387 of the FW Act states:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b)whether the person was notified of that reason; and
(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h)any other matters that the FWC considers relevant.
I have considered each of these matters below.
(a) was there a valid reason for the dismissal based on capacity or conduct
In the Form F3 – Employer response to unfair dismissal application, the Respondent suggested that Ms Hunt elected to withdraw training services, Ms Taverna was not prepared to take on any more training until she was properly paid, and Ms Delfino terminated her casual agreement with the Respondent.
In circumstances where the Deputy President found in the jurisdiction decisions that each of the Applicants was dismissed by the Respondent by virtue of the Respondent issuing the email of 9 December 2021 in which it was said the Applicants would not be returning to work with the Respondent, and where there is no evidence of misconduct or incapacity, I am not satisfied that there was a valid reason for the dismissal of any of the Applicants based on capacity or conduct.
(b) & (c) if the Applicants were advised of that reason and given an opportunity to respond
On the evidence before me I cannot find that the Applicants were advised of any reason for their dismissal or given an opportunity to respond.
(d) access to a support person
It is not apparent that any meetings were held with the Applicants in relation to the termination of their employment. I note that the parties participated in meetings in October and November 2021 but these were confined to seeking a resolution to the underpayment disputes.
(e) performance related matters
It is not apparent the Applicants were dismissed for performance related reasons.
(f) & (g) the extent to which the size of the business and access to human resources expertise impacted on the procedures followed to effect the dismissal
I accepted above that the Respondent is a small business. There is, however, no evidence before me that would allow me to understand how mature the business might be or its access to human resource expertise in relation to how it engaged with the Applicants over matters at the time of their dismissals.
(h) other matters
The Applicants submit that they had unblemished records in their employment with the Respondent and for this reason had a reasonable belief that their employment would continue.
Conclusion
The absence of a valid reason or procedural fairness in relation to the dismissal of each of the Applicants leads me to conclude that the dismissal of each of the Applicants was harsh, unjust and unreasonable. I consider all other matters neutral.
For this reason I am satisfied that each of the Applicants was unfairly dismissed.
REMEDY
Having found that each of the Applicants were unfairly dismissed it turns to me to determine an appropriate remedy. None of the Applicants seek reinstatement and I therefore do not consider reinstatement reasonable.
I shall therefore consider compensation.
Section 392 of the FW Act sets out those matters to which the Commission is required to have regard in the determination of an appropriate amount of compensation. It states:
392 Remedy—compensation
Compensation
(1)An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2)In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3)If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4)The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
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.
(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.
I have considered the matters under s.392 in relation to each of the Applicants, again noting that the Respondent has failed to participate in proceedings or file any evidence or submissions. I have no more than the evidence and submissions of each of the Applicants on which to make findings.
Further, I am satisfied that each of the Applicants was employed by the Respondent pursuant to the 2020 Award at the time of their dismissal. The 2020 Award came into effect on 13 April 2020 and replaced the Educational Services (Post Secondary Education) Award 2010 (the 2010 Award). Beyond changes in clause numbers, the classification and progression arrangements as would have applied to each of the Applicants did not vary between the 2010 Award and 2020 Award.
The Applicants submit, and I accept, that each was employed as a Tutor/Instructor (clause B.4.1(b) of the 2020 Award) and would have commenced at Level 2 with progression to Level 7. Further, I accept that, in accordance with clause B.5 of the 2020 Award each Applicant would have progressed to the next pay point each 12 months of completed employment.
I have accepted that each of the Applicants was dismissed on or about 9 December 2021 and the 2020 Award came into effect from 13 April 2020 I need only be concerned with the rates of pay in the 2020 Award for the purposes of determining compensation.
The relevant casual rates of pay under the 2020 Award between 1 July 2021 – 30 June 2022 as applied to the Applicants are as follows:
1 JULY 2021 - 30 JUNE 2022 Casual daily rate3 Casual hourly rate4 Level 2 $256.07 $ 51.21 Level 3 $261.13 $52.23 Level 4 $266.24 $53.25 Level 5 $277.01 $55.40 Level 6 $284.19 $56.84 Level 7 $290.73 $58.15
The relevant casual rates of pay under the 2020 Award between 1 July 2022 – 30 June 2023 are as follows:
1 July 2022 - 30 July 2023 Casual daily rate3 Casual hourly rate4 Level 2 $267.84 $53.57 Level 3 $273.14 $54.63 Level 4 $278.49 $55.70 Level 5 $289.75 $57.95 Level 6 $297.26 $59.45 Level 7 $304.10 $60.82
3 As provided in clause 15.2 the daily rate is paid where the engagement is for 5 hours or more.
4 As provided in clause 15.2 the hourly rate is paid where the engagement is for less than 5 hours.
In relation to each of the Applicants
For the sake of brevity the following matters apply equally to each of the Applicants and should be read in conjunction with the specific findings below in relation to compensation.
Each of the Applicants was dismissed from their employment on or about 9 December 2021. For the purposes of the calculation on remedy I have accepted that their employment was terminated on 9 December 2021.
At the time of termination of employment COVID-19 restrictions on where work could be performed were coming to an end. It is apparent from the jurisdiction decisions that the COVID-19 restrictions had some impact on the working arrangements of the Applicants to varying degrees. To the extent this was canvassed in the jurisdiction decisions and submissions in relation to each Applicant I have taken this into account. In the jurisdiction decisions Deputy President Young found specific hours of work for the Applicants. I have used those hours of work for the purposes of determining compensation. To this extent I have assumed that, had the Applicants remained in employment, their hours of work would not be less than what was found in the jurisdiction decisions.
Application of the compensation cap (s.392(5))
The compensation cap is to be calculated by reference to the total remuneration received or to which the person was entitled (whichever is greater) in the 26 weeks immediately prior to dismissal or, if the person was on leave without pay or not on full pay the amount determined in accordance with the regulations.
I have calculated the compensation cap based on the hours of work of the Applicants as determined in the jurisdiction decisions where this is clear. Otherwise I have used the “best estimate” as provided by the Applicants in their submissions to the matter before me. The precise calculation is set out in the detailed findings below.
The effect of an order on the viability of the Respondent (s.393(2)(a))
As previously stated in this decision the Respondent has declined to participate in proceedings. Given the lack of information before the Commission it is not possible to conclude that the order I propose to make in relation to each Applicant will affect the viability of the Respondent’s business.
Any other matters (s.392(2)(g))
There are no other matters beyond those set out below in relation to any Applicant.
Reduction for misconduct (s.392(3))
There is no evidence of misconduct and I have not made any deduction for this reason from any Applicant.
No payment for shock humiliation and distress (s.392(4))
I have made no payment for this purpose.
Stefania Taverna
The remuneration Ms Taverna would have received had her employment not been terminated (s.392(2)(b) & (c))
I am satisfied that at 9 December 2021 – the time of dismissal – Ms Taverna had completed in excess of 11 years’ service with the Respondent. While the Applicants’ representative suggests that Ms Taverna would only have been employed for a further 26 weeks there is nothing in the evidence before me to suggest such a short period of future employment given her length of service. I am therefore satisfied that her employment would have continued for a further 12 months.
At the time of her dismissal in December 2021 Ms Taverna was paid at Level 7 under the 2020 Award at $58.15 per hour. On 1 July 2022 her rate of pay would have increased to $60.82 per hour.
Ms Taverna’s hours of work were subject to some dispute in the hearing before Deputy President Young who ultimately found that she “prefer[red] the evidence of Ms Taverna as to the hours she worked during the period” of February 2021 – December 2021. Unfortunately, this does not assist me in determining Ms Taverna’s likely future hours of work. The Applicant’s representative submits that it is reasonable to assume that Ms Taverna was working 15.38 hours contact hours (or 2 shifts) per week (based on 800 face to face teaching hours being equivalent to one year of full-time experience) and this would have continued.
Clause 14.3(c)(ii) of the 2020 Award states that each contact hour by the tutor/instructor will count as 1.25 hours of work. Ms Taverna’s contact hours of 15.38 per week therefore must be multiplied by 1.25 in recognition of this provision. I have, for this reason, based my calculations below on 19.225 hours of work per week.
I am satisfied that Ms Taverna’s earnings for the 12 months I consider she would have remained in employment to be:
10 December 2021 to 30 June 2022 19.225 hours/week x $58.15/hour x 29 weeks = $32,420.08 1 July 2022 to 9 December 2022 + 19.225 hours/week x $60.82/hour x 23 weeks = $26,893.08 = $59,313.16
In the 12 month period after her dismissal, Ms Taverna’s evidence is that she earned no income for the period 9 December 2021 – 26 June 2022. From 27 June 2022 – 17 November 2022 Ms Taverna earned an amount of $9,412.50. This should be deducted from her future earnings to assess her lost income.
$59,313.16 - $9,412.50 = $49,900.66
Ms Taverna’s lost income for the period I consider she would have remained employed is therefore $49,900.66. She would also have received an amount of 10.5% superannuation for this period.
Attempts by Ms Taverna to mitigate her loss (s.392(2)(d))
I am satisfied that Ms Taverna has made all reasonable attempts to mitigate her loss. I have therefore not reduced the amount I will otherwise order.
Application of the compensation cap (s.392(5))
Had Ms Taverna been paid the appropriate rate in the 6 months prior to 9 December 2021 she would have received (based on the use of the same hours of work per week as determined above):
9 June 2021 to 30 June 2021 19.225 hours/week x $56.73/hour x 3 weeks = $13,483.30 1 July 2021 to 9 December 2021 + 19.225 hours/week x $58.15/hour x 23 weeks = $25,712.48 = $39,195.78
The compensation cap in relation to Ms Taverna is therefore $39,195.78. I can order no greater payment than this amount.
I have found that Ms Taverna’s lost remuneration is $49,900.66. This is more than the compensation cap. I shall therefore order that Ms Taverna be paid an amount of $39,195.78 plus 10.5% superannuation. An order[7] to this effect will be issued with this decision.
Teresa Delfino
The remuneration Ms Delfino would have received had her employment not been terminated (s.392(2)(b) & (c))
I am satisfied that, at 9 December 2021 – the time of dismissal – Ms Delfino had completed in excess of 13 years’ service with the Respondent. While the Applicants’ representative suggests that Ms Delfino would only have been employed for a further 26 weeks there is nothing in the evidence before to suggest such a short period of future employment given her length of service. I am therefore satisfied that her employment would have continued for a further 12 months.
At the time of her dismissal in December 2021 Ms Delfino was paid at Level 7 under the 2020 Award at a rate of $58.15 per hour. On 1 July 2022 her rate of pay would have increased to $60.82 per hour.
In the jurisdiction decision in relation to Ms Delfino Deputy President Young said “I find that in her employment with the Respondent Ms Delfino regularly worked 4 days per week for 6.5 hours per day other for occasional variations and in periods of lockdown”. Despite the submission of the Applicants’ representative, I am not prepared to find that Ms Delfino would have worked fewer hours than those found by Deputy President Young. The Deputy President had available to her the written and oral evidence of Ms Delfino as well as that of the Respondent. I accept and adopt her findings in this respect. There is nothing before me to suggest that this pattern of work would change.
I am therefore satisfied that Ms Delfino would have continued to work 26 hours per week. I have not based my calculations on a reduced number of hours for lockdown as, by the end of 2021 lockdowns had almost ended.
For the reasons given above in relation to Ms Taverna, I have adjusted the hours for which Ms Delfino would be paid by 1.25, taking into account the provisions of clause 14.3(c)(ii) of the 2020 Award.
10 December 2021 to 30 June 2022 32.5 hours/week x $58.15/hour x 29 weeks = $54,806.38 1 July 2022 to 9 December 2022 + 32.5 hours/week x $60.82/hour x 23 weeks = $45,462.95 = $100,269.32
I therefore find that Ms Delfino lost earnings, for the period I consider she would have remained employed had she not been dismissed, to be $100,269.32.
Attempts by Ms Delfino to mitigate her loss (s.392(2)(d))
Since her dismissal Ms Delfino has not worked but has been in receipt of social security benefits. This is not an amount that I have taken into account, any overpayment of social security benefits arising from the amount I have decided to award being a matter for Ms Delfino and Services Australia.
Ms Delfino has provided no evidence of attempts to mitigate her loss through seeking other employment. I have therefore reduced the amount of lost earnings by 15%. I consider this amount reasonable in circumstances where Ms Delfino has continued her efforts to resolve her underpayment claim but has otherwise taken no steps to find alternative employment. It is reasonable in this case to expect Ms Delfino would seek to offset the effects of the loss of her employment with the Respondent with alternative work. This reduces the lost earnings amount to $85,228.93.
Application of the compensation cap (s.392(5))
Had Ms Delfino been paid the appropriate rate in the 6 months prior to 9 December 2021 she would have received (based on the use of the same hours of work per week as determined above):
9 June 2021 to 30 June 2021 32.5 hours/week x $56.73/hour x 3 weeks = $5,531.18 1 July 2021 to 9 December 2021 + 32.5 hours/week x $58.15/hour x 23 weeks = $43,467.13 = $48,998.30
The compensation cap in relation to Ms Delfino is therefore $48,998.30.
I have found that Ms Taverna’s lost remuneration is, less the mitigation deduction, $85,228.93. This is more than the compensation cap. I am therefore statutorily required to reduce the amount of compensation payable to Ms Delfino to $48,998.30. She would also be entitled to 10.5% superannuation. An order[8] to this effect will be issued with this decision.
Karlee Hunt
The remuneration Ms Hunt would have received had her employment not been terminated (s.392(2)(b) & (c))
I am satisfied that, at 9 December 2021 – the time of dismissal – Ms Hunt had completed just over 6 years’ service with the Respondent. While the Applicant’s representative suggests that Ms Hunt would only have been employed for a further 26 weeks there is nothing in the evidence before to suggest such a short period of employment given her length of service. I am therefore satisfied that her employment would have continued for a further 12 months.
At the time of her dismissal in December 2021 Ms Hunt would have been paid at Level 7 under the 2020 Award at a rate of $58.15 per hour. On 1 July 2022 her rate of pay would have increased to $60.82 per hour.
Ms Hunt’s hours of work were subject to some dispute in the jurisdiction hearing before Deputy President Young who ultimately found that “Ms Hunt has worked between 1-4 shifts per week for 6.5 hours per day” except for periods when she took leave. In light of this finding I consider it reasonable to calculate Ms Hunt’s anticipated earnings based on her working 2.5 shifts per week of 6.5 hours per day (equivalent to 16.25 hours per week). For the reasons given above this needs to be multiplied by 1.25 giving 20.31 paid hours per week.
In her witness statement filed in these proceedings Ms Hunt says that, from at least March 2022, she has not been fit for work due to her health. Absent any other evidence I take that this was the case from 1 March 2022. Ms Hunt can therefore not have lost any income from the period commencing 1 March 2022 as she would not have been earning an income during that period even if her employment had continued. Ms Hunt’s statement confirms that, as at November 2022, she was still unfit for work due to a medical condition. I shall therefore consider Ms Hunt’s lost remuneration only for the period 9 December 2021- 28 February 2022.
10 December 2021 to 28 February 2022 20.31 hours/week x $58.15/hour x 11.6 weeks = $13,699.91
Attempts by Ms Hunt to mitigate her loss (s.392(2)(d))
Given the period between the cessation of her employment and when she became medically unfit for work was a period of just over 11 weeks I have determined not to make any deduction from Ms Hunt’s lost remuneration due to any perceived failure to mitigate her loss by seeking alternative employment.
In reaching this conclusion I have also taken into account that Ms Hunt was engaged in attempts to recover underpayments from the Respondent, a process that did not provide any clarity to Ms Hunt until May 2022 when the Fair Work Ombudsman issued a compliance notice on the Respondent.
Application of the compensation cap (s.392(5))
I am satisfied that the amount of lost wages I have calculated for Ms Hunt is less than the compensation cap (given it is calculated on 11.6 weeks pay).
An order[9] that the Respondent pay to Ms Hunt an amount of $13,699.91 plus an amount of 10.5% for superannuation will be issued with his decision.
CONCLUSION
For the reasons given above I shall issue orders each of which will require the Respondent to pay, within 21 days of this decision, compensation of:
· For Ms Taverna: $39,195.78 plus 10.5% superannuation.
· For Ms Delfino: $48,998.30 plus 10.5% superannuation.
· For Ms Hunt: $13,699.91 plus 10.5% superannuation.
COMMISSIONER
Final written submissions:
Applicant 15 March 2023
[1] Applicants’ Submissions as to Joint Hearing
[2] [2022] FWC 2181(Delfino); [2022] FWC 2182 (Hunt); [2022] FWC 2177 (Taverna)
[3] [2022] FWCFB 244
[4] Taverna [78], Delfino [63], Hunt [61]
[5] Taverna [78], Delfino [84], Hunt [82]
[6] Taverna [25], Delfino [28], Hunt [30]
[7] PR760856
[8] PR760857
[9] PR760858
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