Stephen Foster v FM Financial Group Pty Limited T/A FM Financial

[2016] FWC 1203

[2016] FWC 1203

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Foster
v
FM Financial Group Pty Limited T/A FM Financial
(U2015/11021)

DEPUTY PRESIDENT ABEY HOBART, 1 MARCH 2016

Application for relief from unfair dismissal – whether there was a resignation or termination at the initiative of the employer – found that termination amounted to a constructive dismissal – reinstatement not practical – compensation ordered

[1] Mr Stephen Foster (the applicant) has lodged an application for an unfair dismissal remedy under s394 of the Fair Work Act 2009 (the Act). The applicant contends that the circumstances of his employment termination from FM Financial Group Pty Limited (FM) (the respondent) amounted to a constructive dismissal.

[2] The respondent has raised a jurisdictional issue contending that the applicant resigned from his employment.

[3] The applicant relies on s386(1) of the Act which relevantly reads:

“(1) A person has been dismissed if:
…..
(b) the person has resigned from his or employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

Evidence

[4] During the hearing, sworn evidence was taken from the following witnesses:

Stephen Robert Foster, applicant

Dennis Meredith Sam Harrington, General Manager and Managing Director of FM Financial

[5] The parties agreed that the totality of the evidence and argument was to be put to the Commission. Whether the matter of remedy would need to be addressed would depend upon the outcome of the jurisdictional contention.

Background

[6] In 1996 the applicant, as a director of Stephen Foster Financial Advisors Pty Limited, commenced a financial planning business under that name. Mr Foster asserts that he was employed by the Company on a full-time basis.

[7] On 18 December 2003 the company changed its name to FM Financial Pty Limited.

[8] On 11 March 2011 the company FM Financial Management Group Pty Limited was registered with Stephen Foster, David McCarthy, Denis Harrington and Leanne Stokes appointed as directors.

[9] On 1 July 2011 the applicant entered into a written contract of employment with FM Financial Group Pty Limited.

[10] On 17 March 2014 the applicant and Mr McCarthy transferred their shares in FM Financial Pty Limited to FM Financial Group Pty Limited.

[11] It is not disputed that Mr Foster was an employee of the respondent at least since 2004. The matter of service prior to 2004 is in dispute. Whilst this is relevant for leave accrual purposes, it is not a matter that the Commission is asked to determine.

[12] At the relevant time the respondent maintained offices in Melbourne, Burnie, Devonport, Launceston and Hobart and employed 15 staff.

Relevant Events over Recent Years

[13] The applicant contends that since before 2012 he had sought additional administrative support in the Devonport office as he was usually there on his own. This he states was not forthcoming; instead he was advised to use the administrative staff in the Burnie office, a situation he maintains was unsatisfactory.

[14] These concerns were raised in a Business Planning Session on May 22 2012.¹ According to the minutes, Mr Foster expressed frustration as to the lack of dealer and administrative support, and foreshadowed that he intended to explore the options of retirement and/or having a break.

[15] A Budget Review Report dated 29 January 2014 prepared by Mr Harrington records the following:²

“The major savings area is in salary.
As discussed at the last board meeting, salary for David Mc and Stephen F will stop at the end of February. Both will be offered an hourly rate for when they work for FM on FM business. This will save $170k a year. Given we are a corporate there is no need for these individuals to sell out of the business and this is not a plan for exiting their shareholdings.”

[16] This did not eventuate. Mr Foster was, however aware of the document’s content
.
[17] On 18 February 2014 Mr Harrington met with Mr Foster to discuss a range of performance related matters. Matters discussed included fees generated compared with budget, administration support, client complaints, preparation for board meetings, time spent in the office, and Mr Foster’s general morale and enthusiasm for work.

[18] Under cover of an email dated 25 February 2015 Mr Harrington attached a file note of this meeting. The covering email reads:³

“I have attached my file note for you to read regarding our discussion about your performance and where we go from here. There are a number of action items that I have asked you to take and provide me with feedback over the next week or so. I recognize that this file note will place you under further pressure, please call me once you have had a chance to read and digest the note so we can work on alternatives for you.”

[19] The file note encompasses Mr Harrington’s recollection of the meeting and included the following:⁴

“I advised that the business has been carrying you for over 2 years and that our cash flow situation now requires us to take action to save $29k a month. Hence I am advising you that we can no longer continue to support you as a non performing adviser. To this end we are looking at stopping your salary/employment at a date to be agreed on but no later that 18 of April 2014 unless we agree a specific date after this.

In closing we discussed the various options that came up in our discussion,

You gain the consulting role and move to that. Stopping being employed by FM.

You leave FM to do something that you really want to do and FM helps you get started. Again we stop your employment.

You leave FM with nothing to do. We stop your employment no later than 18th of April.

You stay at FM but come up with a $10.4k saving per month ongoing (your monthly cost to the business).”

[20] Shortly thereafter (but date unknown) Mr Foster responded as follows:⁵

“Denis

I note the receipt of your email/letter. You are right stating that this will place me “under further pressure” and given the content of the letter can only assume that this was your intent.

I will be strongly refuting the majority of what you have written as it contains significant factual errors, observations & innuendo. It is not an accurate record of our meeting discussion and represents a significant distortion of our conversation it is grossly unfair & unjust.

I am deeply shocked and very disappointed in the way you have approached this.
I will reply in due course.”

[21] By email dated 7 March 2014 Mr Harrington enclosed an amended letter which purported to remove reference to a finishing date with FM as an employee.⁶ However the attached letter still referred to a finish date of 18 April 2014.⁷

[22] Mr Harrington sent a further email dated 14 March 2014 which relevantly reads:⁸

“I am sorry that I missed removing the date from the body of the letter after we had talked last week. I have amended the letter and removed all reference of the end date. Find attached. Let me know if I have missed something again.

The letter is my recollection of the discussion that we had. I acknowledge that you did not agree with some parts of the discussion and have acknowledged these in the letter, preparation for the Board meeting, and the perception of you being out of the office. However, I did raise these topics with you as documented but did not pursue them with examples etc. at that time and the letter confirms the topics were raised. I am happy for you to write and present a counter view and 1 am sure you will provide reasons for each area discussed.

The main thrust of the letter was around your income generation performance. A fact that you acknowledge is below acceptable levels.

When we meet on Tuesday next week I look forward to discussing with you how I can support you deliver on your income targets. This is the most critical issue facing you and FM

I apologise for not deleting all reference to the end date in the revised letter. I have checked and think I have removed all reference to it now. Whilst acknowledging that we did not discuss a possible end date of your employment I don’t want to lose focus on the need for income to be generated at acceptable levels from now on.

I know that you are very aware of the income issue and are now working towards lifting in this area.”

[23] Mr Foster responded by email dated 17 March 2014, which reads:⁹

“Please find attached a medical certificate. The ongoing saga around my employment status has led to a situation in which my health has deteriorated significantly.

My GP strongly recommended that I needed to take a break a fortnight ago but I thought I would be able to work thru it but I cannot. I went to see my GP again on Friday as unfortunately receipt of your 2^nd letter made a bad situation worse. Even the 3^rd effort has done little to resolve the distress and pressure I feel.

As late as this morning, I thought I could manage, but I am unable to.”

[24] Mr Foster then took personal leave for a period of three weeks.

[25] On 16 April 2014 Mr Foster was involved in a motor vehicle accident, and as a consequence of injuries incurred, was unable to return to work until February 2015.

[26] Mr Foster continued to be paid his full salary throughout this period, through a combination of personal leave and payments received from ‘Work Cover’. The respondent contends that Mr Foster had used all his accumulated sick leave as at 25 September 2014. This is not conceded by the applicant and it would seem that service prior to 2004 may be factor in this dispute. Notwithstanding, the respondent continued to pay Mr Foster’s salary up until 27 February 2015. This, the respondent contends, equates to a payment of $57352 over and above accrued entitlements. The evidence indicates however, that the respondent has sought to claw this back, either through a potential Work Cover payment or an offsetting mechanism. This had not eventuated at the time of hearing, and again, is not something the Commission is asked to determine.

[27] Mr Foster returned to work for a few days In February 2015. On 3 February a meeting between Mr Foster, Mr Harrington and one other director took place. The ensuing discussions were on a without prejudice basis. It is however sufficient to say that the discussions were freely entered into and involved the possible sale of the applicant’s shares and an exit package. Mr Foster was also advised that in order to return to work as an advisor he must have his Authorised Representative (AR) status reinstated by Hillross. (note: Mr Foster’s AR status had been revoked by Hillross during his period of absence on personal leave). Mr Foster was allowed until 27 February to consider his position.

[28] By email dated 26 February 2015 Mr Foster advises Mr Harrington that Damien Durkin is authorised to be provided with information concerning the sale of shares and “just to avoid any confusion, I am interested in selling my shares within FM.”¹⁰

[29] Between 12 March and 1 May 2015 Mr Foster was not paid salary but received the monetary equivalent through a draw down on his loan account. As described to the Commission, this arrangement increased the debt owed by Mr Foster and could be viewed as a down payment on the sale of his shares. It was an arrangement apparently negotiated by Mr Durkin, with the consent of Mr Foster.

[30] On 22 April Mr Harrington sent an email to Mr Durkin. The email canvassed a number of client related issues and stated:¹¹

“As you are aware I had performance discussions with SF prior to the accident. Whilst I acknowledge that in my letter I made a mistake with dates, the point is his performance as an adviser was below acceptable, without adding the client issues we have had to deal with and are continuing to deal with, as we find clients that have not been serviced for some time. We believe we have more than ample grounds to implement a performance management process starting at the beginning that would result in SF leaving the business on poor performance grounds. This was our legal advice, start again and then terminate. A check of his past performance would show that he has not been an active adviser generating income over the last 2 years. His threat of “I will return” is interesting and possibly would work in our favour in terms of exiting him, but would also cost us in time and energy. However if this is where it ends, once he has regained his Authority to give advice he could start, he would also need to start delivering on his income KPI’s which would be the same as before he took leave. Based on his past performance he would immediately be under pressure and it would lead to the same conclusion.”

[31] The email concluded with reference to ongoing negotiations concerning an exit package.

[32] By letter dated 24 April 2015 Mr Foster’s representative Andrew Cameron advises:¹²

• Mr Foster would not be attending the proposed conciliation conference due to a potential conflict of interest with the conciliator



• Mr Foster is keen to have all matters resolved and proposes an alternate conciliator



• Mr Foster will return to work on 1 May 2015 “until the matters are resolved.”

[33] Mr Foster was told that on his return he was required to work from the Burnie office. Mr Harrington said:¹³

“As Mr Foster had not been at work for 13 Months, I formed the view that it would be best for him to work at the Burnie office rather than the Devonport office where Mr Foster had last worked.

Unlike the Devonport office, the Burnie office was staffed, so Mr Foster would not have to work alone.

In the past Mr Foster had worked from the Company’s Burnie office for the purposes of client meetings and director’s meetings.”

[34] The evidence of Mr Foster is:¹⁴

“I did not see any reason for this as I was doing computer based professional development and this could have been done from the Devonport office. I objected to this but was told I had to attend at Burnie. This incurred an extra 80 minutes of travelling each day which to me seemed unnecessary.”

Mr Foster returned to work on 4 May 2015. It is clear that there were two immediate issues in the mind of the respondent:

• Mr Foster’s AR status which had previously been revoked by Hillross.



• A number of client complaints involving Mr Foster.

[35] It would seem that Mr Harrington and Mr Foster agreed on a target of achieving the necessary 40 Continuing Professional Development (CPD) points over a two week period. This was subsequently extended by one week.

[36] During the first three weeks of May 2015 there were a number of conversations and email exchanges concerning CPD points, AR status, client issues and exit negotiations.¹⁵

[37] An email from Mr Harrington dated 19 May relevantly reads:¹⁶

“I asked about your AR application and status. You advised that you have not submitted your application but will get it submitted tomorrow. We both understand that AMP can take their time in processing the application. This will create an issue as the Business will not accept you being on full pay to sit in the office pending AMP processing your application. You are to advise if you are taking the AR application processing time as recreational leave, otherwise it will be leave without pay.”

[38] On 25 May Mr Harrington sent an email to Mr Foster stating:¹⁷

“You have spent the last 3 weeks working on gaining your CPD points in order to have Hillross approve, your Authorised Representative (AR) status application. You have advised that you have submitted the application form to Hillross today. In support of your application I will ask Hillross to “fast track” your application.

As you were employed as an adviser of FM Financial and you currently don’t have an AR you are not able to carry out the duties of an adviser as per your employment contract. Until your AR status is granted by Hillross FM is not in a position to have you attend the office. We do not have work for an unauthorised adviser.

As discussed and agreed effective from the close of business today you are unable to carry out the duties of an adviser so we ask that you do not attend any FM office until a decision relating to your AR status is achieved. We will communicate with you as soon as we hear from Hillross regarding the AR position.”

[39] Mr Foster responded that day stating:¹⁸

“I havenotagreed to not attending work.

You are in fact standing me down which under the Fair Work Act is a breach of the law.

I can either be stood down on full pay or you can discuss with me what duties I can do - which is in accordance with the Act.”

[40] On 3 July 2015 Mr Foster submitted an application for Authorised Representative status under the sponsorship of Bridges.¹⁹ This application recorded that he had ceased employment with FM on 3 July 2015. The reason for termination is recorded as:

“Sale of business, unhappy with the direction of the business.”

[41] On 27 July Mr Foster submitted his resignation, stating:²⁰

“It is with regret that after 19 years employment I am in a position whereby I have no alternative but to tender my resignation.

Unfortunately the company has put me in such a position due to the way it has treated me in relation to my injuries, my stand-down without pay, and total disregard for my long and loyal service.

My resignation is effective immediately. I will make arrangements to collect my possessions, including all furniture, belonging to me, so can you please advise who I should coordinate this with.”

[42] The evidence of Mr Foster as to his reason/s for resignation is as follows:²¹

“The long absence with the subsequent expiry of personal leave entitlements, and thus lack of income placed me under intense financial stress.

To then be stood down without pay made the situation intolerable.

It is my belief that this, together with the other threats in relation to stopping my income, citing client complaints against me (which I deny and never had the opportunity to challenge), and threatening to performance manage me out of the business, were intended to force me to accept a reduced valuation on my share of the business which the company wanted to purchase, the company being fully aware of the financial stress I was under.

Despite the promise to fast-track my AR approval I am not aware of any actions by the company to do so.

After nearly 2 months without any income I resigned my employment as I had no other choice. I knew the company did not want me to return and were planning to exit me in whatever manner they could, and would continue to pressure me to sell my share in the business for less than its true value.

I have been able to secure part-time employment as a financial planner with a company located in Launceston. This is only for three days per week and at an annual salary of $42,000.

1 have been forced to relocate to take up this position from Spreyton to Launceston.”

[43] Mr Foster maintains that there were other duties he could have performed without AR status. This includes reviewing files, providing assistance to other staff, preparing calculations and preliminary advice.²²

[44] Mr Foster’s evidence as to why he did not take accrued leave is:²³

“During the period after you were asked not to attend at the office, did you ever ask to be paid your annual leave or long service leave?  -No, because I wasn’t aware I had any and swinging over the top of me was the issue that they were saying that they’d overpaid my sick leave and that I was due initially to repay $72,000 back to the firm as a debt which for me was just - the first thing I was aware was when I returned to work and they laid this on the table that said that I owed the firm $72,000. So in that short period of time, you know, I wasn’t aware what my status was.”

The evidence of Mr Harrington is:²⁴

“In your statement, at paragraph 3(g), you told Mr Foster, in an email dated 19 May 2014, he could take recreational leave whilst awaiting - waiting for his authorised representative application to be processed or leave - or take leave without pay. Can you direct Mr Foster to take annual leave, under his contract of employment?  -No.

Can you direct him under any award?  -No.

Can you direct him to take annual leave under the National Employment Standards?  -I wouldn’t think so.

No. So you told him not to come to the office and you weren’t going to pay him for that period?  -That’s correct.

So you had no authority to tell him to take long service leave either, did you?  -I can’t force Mr Foster to take his leave.

No. So therefore you were telling him not to attend the office and you were refusing to pay him for that period of time?  -Yes.

Okay. Mr Foster challenged that, didn’t he? He wrote to you and asked if he was going to be paid for that period. Do you recall that email?  -No. I think he wrote to me questioning whether I was standing him down.

How did you respond?  -I didn’t think I was standing him down.”

[45] In relation to AR status, the evidence of Mr Harrington is:²⁵

“The Company allowed Mr Foster to attend work until 25 May 2015 so that he could complete the work necessary to apply to regain his Authorisation. However, the other directors and I had decided that due to the fact that Mr Foster could not do the work for which he was employed to do, that of Financial Planning and could not contribute to revenue, he should not be in the office until he had the Authorisation to provide financial advice”

[46] Mr Harrington maintains that Mr Foster had options open to him other than resignation. His evidence is:²⁶

“First he had the option of completing his CPD requirements foir him to become an Authorised Representative and return to work with the respondent. Second he could take leave, either long service leave or annual leave to ensure he was being paid whilst waiting for approval from Hillross to become an Authorised Representative. Third the applicant could again draw down on his loan account in order to provide him with monetary fund’s to get him through the period waiting for approval from Hillross as an Authorised Representative. The applicant made his own decision to resign unilaterally on 27 July 2015 and made no approach to me to discuss the issue.”

Consideration

[47] I accept that under the terms of his contract of employment, AR status is mandatory without which Mr Foster cannot work as a financial planner. I acknowledge that Mr Foster may have been able to perform some work for a limited period which might have been productive. However this work would not have generated income, a matter which was at the heart of the performance issues which had been raised By Mr Harrington on a number of occasions.

[48] I also acknowledge that Mr Foster lost his AR status, not through any fault of his own, but rather as a consequence of his forced extended absence following the car accident. I also recognise that despite some apprehension along the way on Mr Harrington’s part, Mr Foster did complete the necessary CPD points in a three week period. Had there been a more productive relationship between Mr Foster and Mr Harrington, a discussion along the lines of what productive work Mr Foster could do pending the grant of AR status, might have been possible. However such was not the case.

[49] It is not for the Commission to judge whether the performance issues Mr Harrington clearly held were justified. It is sufficient to note that the concerns related to subject matter which Mr Harrington was entitled to pursue and would not normally give rise to a situation of constructive dismissal.

[50] There are however other aspects which no doubt led to considerable apprehension on Mr Foster’s part. I refer in particular to the emails (with attachments) dated 25 February and 7 March 2014; the Budget review document dated 29 January 2014; the email to Mr Durkin dated 22 April 2015 and to a lesser extent the decision which required Mr Foster to work out of the Burnie office.

[51] Mr Harrington submits that the respondent was supportive in facilitating Mr Foster’s return to work after the car accident. This to some extent is true. However the major issue relating to the payment of personal leave from September 2014 to February 2015 is neutralised by subsequent attempts to claw this back.

[52] The principle regarding dismissal at the employer’s initiative is outlined in Mohazab v Dick Smith Electronics Pty Ltd:²⁷

“In these proceedings it is unnecessary and undesirable to endeavor to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”

[53] The authorities are further reviewed in Barkla v GAS Custodial Services Pty Ltd which in turn adopted the finding in ABB Engineering Construction Pty Ltd v Doumit::²⁸

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[54] In this case the option to take accrued leave or be stood down without pay was presented to Mr Foster as an ultimatum, not a point for negotiation. Mr Harrington acknowledges that there is no legal basis on which an employee can be forced to take leave. Given the uncertainty as to the extent of leave accruals and the ongoing attempts by the respondent to claw back the alleged overpayment in personal leave, the response of Mr Foster²⁹ is understandable. I note in passing that the accumulated annual leave was not paid until 9 November 2015³⁰ and the quantum still remains in dispute. Further I am satisfied that the ensuing stand-down is entirely inconsistent with s524 of the Fair Work Act 2009. It follows that, absent agreement on Mr Foster’s part, the actions of the respondent must on its face be viewed as unlawful.

[55] There is no doubt in my mind that Mr Harrington wanted Mr Foster to exit the business and on the evidence, had held that view for more than a year.

[56] Mr Foster’s view is that respondent was aware of the financial stress he was under. He states that the decision to stand him down without pay was designed to put pressure on him to accept a reduced valuation on his shares. His evidence is that this action, coupled with earlier threats concerning the cessation of income and the implied threat to performance mange him out of the business, left him with no realistic alternative but to gain alternative employment, which led to his resignation. I find that this conclusion was reasonably open to Mr Foster. This is consistent with s386(1)(b) of the Act.

[57] It follows that I find that the action of the respondent outlined above directly or indirectly resulted in the termination of the employment relationship, and had in not occurred, Mr Foster would have remained in an employment relationship.

[58] It is acknowledged that the respondent does not have the benefit of an in–house human resources specialist. This, however, does not relieve the employer of compliance with statutory obligations under the Act. As the action of the employer on 25 May 2015 was, on its face, unlawful, it follows that the termination was unjust and unreasonable, and was therefore an unfair dismissal.

Remedy

[59] The parties are agreed that reinstatement is not a practical option. I have therefore formed the view that compensation is the appropriate remedy.

[60] The Act provides for compensation at s392:

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.

Note: subsection 392(5) indexed to $68,350 from 1 July 2015

(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.”

[61] In determining the amount of compensation to be awarded, if any, I must have regard to all the circumstances of the case including each of the paragraphs in s.392(2) above. The general approach to the calculation of compensation is set out in by the Full Bench in Tabro Meats Pty Ltd v Heffernan³¹and I will follow that approach in determining this matter.

Section 392(c) – the remuneration the person would have received or would have been likely to have received, if the person had not been dismissed

[62] Mr Foster was paid an annual salary of $105820 which included superannuation. This equates to $2035 per week.

[63] In my view the employment relationship between Mr Foster and the respondent had a limited future. From the evidence I am satisfied that there was a mutuality of intent to bring the relationship to an end. The only barrier to this outcome was reaching an agreement as to the terms of an exit package, possibly including the sale of Mr Foster’s shares.

[64] I consider it reasonable to assume that Mr Foster would have remained employed for a further 12 weeks, during which period an agreement as to an exit package would have likely been agreed. Thus it is assumed that employment would have continued until 18 August 2015. During this period Mr Foster would have earned $24420, including superannuation.

Section 392(2)(e) – The amount of any remuneration earned by the person from employment or other work during the period between dismissal and the making of the order for compensation

[65] On 27 July 2015 Mr Foster secured part-time employment with Bridges Launceston at an annual salary of $46000 including superannuation. On this basis I calculate that Mr Foster would have earned $2654 between 27 July and 18 August 2015. This must be deducted from the amount of $24420 above, leaving provisional compensation of $21766.

Section 392(2)(a) – the effect of the order on the viability of the employer’s enterprise

[66] The respondent did not advance any evidence going to this consideration.

Section 392(2)(b) – the length of the person’s service with the employe.

[67] The applicant has been employed by the respondent at least since 2004 and arguably since 1996. This is a significant length of service and provides no basis for further reducing any compensation to him.

Section 392(2)(d) – the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[68] Mr Foster was successful in gaining alternative employment. His efforts at mitigation are sufficient to exclude any further deduction from the quantum of compensation.

Section 382(2)(g) Any other matter the FWC considers relevant

[69] There are no additional considerations to be taken into account.

Section 392(3) – misconduct

[70] There is no evidence of misconduct on the part of Mr Foster.

Section 392(5) – compensation cap

[71] The quantum of compensation proposed does not exceed the compensation cap.

Compensation

[72] I find that an order for compensation is appropriate.

[73] I am satisfied that an order for payment of compensation by the respondent of $21766 less tax as required by law, to the applicant in lieu of reinstatement is appropriate in all the circumstances of this case. It accords with a fair go all round to both the respondent and the applicant.

[74] The compensation payment is to be made within 14 days of this decision. An order will be issued concurrently with this decision.

1 Exhibit A5

2 Exhibit A3 Att. G

3 Exhibit A3 att. B

4 Exhibit A3 att. C

5 Exhibit A3 att. D

6 Exhibit A3 att. E

7 Exhibit A3 att. F

8 Exhibit R6 att. DMSH -14

9 Exhibit A3 att. F

10 Exhibit R5 att. DMSH - 2

11 Exhibit A3 att. H

12 Exhibit R5 att. DMSH - 3

13 Exhibit R5 paras 33 - 35

14 Exhibit A1 para 17

15 Exhibit R5 atts. DMSH 6-9

16 Exhibit R5 att. DMSH -10

17 Exhibit R5 att,. DMSH -11

18 Exhibit R5 att. DMSH - 11

19 Exhibit R1

20 Exhibit A3 att. J

21 Exhibit A1

22 Exhibit A1 para 18

23 Transcript PN 87

24 Transcript p 792 -799

25 Exhibit R5 para 47

26 Exhibit R6 para 4[f]

27 [1995] 62 IR 200 at 205

28 [2011] FWAFB 3769

29 Transcript PN 87

30 Exhibit R6 DMSH - 15

31 [2011] FWAFB 1080

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