[2016] FWC 3008

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Kazmar
v
Test-Rite Imports Australasia Pty Ltd T/A Medalist
(U2015/14902)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 13 MAY 2016

Application for relief from unfair dismissal.

[1] On 9 November 2015 Mr Steven Kazmar (the Applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal against Test-Rite Imports Australasia Pty Ltd T/A Medalist (the Respondent).

[2] The Applicant says that he commenced employment with the Respondent on 11 November 2013.

[3] The Applicant says that he was notified of dismissal on 20 October 2015 and the dismissal took effect on the same day.

[4] The Applicant was employed on a casual part-time basis as a store worker and was the recipient of a training wage under the supported wage system as a result of his disabilities. He was employed for three days per week.

[5] He was terminated by letter on 20 October 2015 because he allegedly told his supervisor Namir Cabanit to “shove his roster up his arse”. It was signed by Mr Cabanit and the Warehouse Manager, Spiros Voulgaris.

[6] The Applicant says that he had been absent when the roster had changed and not been given any training in the cleaning task. In any event, he finished it at the end of his shift on 19 October. Mr Cabanit then challenged him in front of other employees. The Applicant then responded as quoted above.

[7] The Applicant seeks compensation.

[8] No F3 form was filed by the Respondent.

Commission Proceedings

[9] A conciliation conference on 10 December 2015 was not successful.

[10] I conducted a telephone programing conference on 23 February 2016.

[11] The Respondent lodged an F4 objection application on 2 March 2016 on the grounds that the applicant was not protected from unfair dismissal because of his casual status.

[12] The hearing took place on 3 March 2016 and proceeded in the form of a determinative conference.

[13] The Applicant relied on his own witness statement and evidence.

[14] The Respondent relied on the witness statements and evidence of:

● Mr B. Prager – General Manager

● Spiros Voulgaris

● Namir Cabanit

● Pechti Chhor

[15] The Applicant was self-represented. Mr Prager represented the Respondent.

Protection from Unfair Dismissal

[16] An order for reinstatement or compensation may only be issued where I am satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

[17] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[18] There was no dispute that the Applicant was covered by a modern award, the Storage Services and Wholesale Award 2010 [MA000084]. The Applicant’s wage was $17.46 per hour. However, taking account of the Supported Wage arrangements, he received $130.95 for 22.5 hours work in compliance with s.382(b). Because of the Applicant’s casual status the Respondent submitted that the Applicant was not a person protected from unfair dismissal in accordance with s.382(a).

[19] Section 396 provides that certain matters must be determined by the Commission before proceeding to deal with the merits of a matter. It provides:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.”

[20] The “minimum employment period” is defined in s.383 of the Act as follows:

“383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[21] In order for a casual employee to satisfy the minimum period of employment they must come within the provisions of s.384 which relevantly provide:

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

Was the dismissal unfair?

[22] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Was the Applicant dismissed?

[23] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act. Section 386 of the Act provides that:

“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

(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.”

[24] There was no dispute that the Applicant was dismissed. Neither s.385(c) or (d) have any application. I note, with respect to the former, that the Respondent had some 30 employees.

The Applicant’s casual status

[25] The Applicant submits that he commenced employment as a part-timer and only became casual six weeks before his termination. In any event, initially he worked three days, 7.00 am to 3.00 pm, then two days, then three days again.

[26] The Respondent did not dispute this but submitted that this did not amount to regular and systematic employment.

[27] I am satisfied that at the time of his dismissal the Applicant was a casual. For most of his employment he had been part-time. In any event, he was employed on a regular and systematic basis and had a reasonable expectation of continuing employment on a regular and systematic basis within s.384.

[28] Accordingly, the Applicant’s minimum period of employment is in excess of the minimum defined by s.383.

[29] The Applicant was therefore protected from unfair dismissal pursuant to s.382.

Harsh, Unjust or Unreasonable

[30] Having dealt with each of s.385(a), (c) and (d) of the Act, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“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.

Approach of the Commission

[31] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[32] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:

“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”

The Applicant’s case

[33] The Applicant admits to using the phrase for which he was dismissed. He says that it was out of character and arose from frustration at being criticised by Mr Cabanit. He completed his cleaning tasks early but this was in accordance with past practice.

The Respondent’s case

[34] The Respondent submits that the Applicant’s conduct was inappropriate and a breach of discipline. It says that the Applicant was given warnings about his loss of temper in the past.

[35] Reference is made by the Respondent to previous incidents which required the Applicant to be counselled including:

● An altercation with another employee in September 2015
● The Applicant’s frustration with his inability to cut down cartons properly in June 2015

[36] Spiros Voulgaris’ evidence was that the Applicant’s work was likely to end in the future. He referred to previous examples of temper by the Applicant but conceded that he had apologised to Mr Cabanit.

[37] Mr Cabanit stated that he had been explaining to the Applicant how the mechanical sweeper was cleaned because the Applicant had not done it properly. The Applicant then became exasperated. This was not assisted by Mr Chhor who made a comment as well.

Valid Reason - s.387(a)

[38] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench said ‘In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable’.

[39] Northrop J in Selvachandranv Peteron Plastics Pty Ltd (1995) 62 IR 371 said:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly ...”

[40] In Parmalat Food Products Pty Ltd v Wililo, [2011] FWAFB 1166, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

[41] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post [2013] FWCFB 6191 provides a useful summary of the approach to be taken by the Commission in weighing the factors to be considered under s.387:

“[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v Commonwealth – that s.170DE(2) by its operation could render invalid a reason that would otherwise have been a valid reason. The fact that some dismissals are “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” means that the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class of dismissals where there is no “valid reason” for the dismissal.

[21] Section 387 specifies a range of matters that must be considered in each case. Section 387(h) requires consideration of “any other matters that FWA considers relevant”. In any given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or unreasonable” and thus are “relevant matters” that must be considered pursuant to s.387(h).

[22] Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter greatly. That will tend to be so when the particular misconduct, shorn of the personal circumstances of the employee and the broader context beyond the particular acts or omissions that are said to constitute the misconduct, is clearly a matter that a reasonable employer is entitled to take seriously. This is such a case.

...

[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1). ”

[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.

[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal.
. . .

[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.”

[42] I respectfully adopt this approach.

[43] There was not a great contest as to the facts in this case. The Applicant admits that he said the words for which he was dismissed.

[44] The Applicant suffers from cerebral palsy. He was employed through the Cerebral Palsy Alliance Employment Solutions. It seems to me that the Respondent did not sufficiently take this into account when dismissing the Applicant. There have been a lot worse things said by an employee to an employer representative which have not led to dismissal. There was no evidence of anger or aggression. The evidence was that the Applicant was frustrated. I am satisfied that the Applicant’s words, in the context in which they were spoken, do not constitute a valid reason for dismissal.

[45] The Respondent sought to rely on previous incidents involving the Applicant. It appears that the Applicant had received a warning for lack of attention to detail in the compilation of an order when a mistake was made. There was some counselling but no formal written warning in the usual way about his conduct or attitude.

[46] The evidence of the Respondent’s witnesses was that because the Applicant was a casual he could be dismissed without much regard to the reason or the process. Whereas, provided the employee comes within s.384, they are entitled to the protection of the Act.

[47] Accordingly, I find there was no valid reason for the dismissal

Notification of a Valid Reason - s.387(b)

[48] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” Ibid at 151.

[49] I find that the Applicant was not notified in accordance with s.387(b). The evidence was that there was no formal advice to the Applicant on 20 October before he received the dismissal. The reason for the dismissal was not put to the Applicant. Mr Prager did not even meet with the Applicant.

Opportunity to Respond s.387(c)

[50] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.

[51] It follows that the Applicant had no real opportunity to respond.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[52] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[53] There was no breach of this section but the Applicant had no opportunity to seek assistance given the nature of what happened on 20 October.

Warnings regarding unsatisfactory performance - s.387(e)

[54] This was not a performance issue so this provision does not apply.

Impact of the size of the Respondent on procedures followed - s.387(f)

[55] Clearly the size of the Respondent impacted on the procedures followed, but it in no way excuses the disregard shown for the right of casual employees.

Absence of dedicated human resources management specialist/expertise on procedures

followed - s.387(g)

[56] No human resources specialists were involved.

Any other matter that the FWC considers relevant

[57] Section 387(h) allows the Commission to consider any other matters it considers relevant. These must be considered in the context of the object of Part 3 - 2 of the Act contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and the employee concerned”.

[58] The Respondent did not have sufficient regard to the disability of the Applicant. Allowance should have been made for this in respect of his conduct and the punishment of dismissal.

[59] It seems clear that the Applicant became frustrated because he sometimes was not able to complete a task. While his words were inappropriate, I do not accept that dismissal was the appropriate response. In addition, the Applicant’s disability was not taken into account in considering the effect of the dismissal on him personally and his chances of future employment.

[60] For the above reasons, in addition to the finding that there was no valid reason for dismissal, I find that the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, I find that the dismissal was unfair within the terms of s.385.

Compensation

[61] Having found that the dismissal was unfair, I now turn to the appropriate remedy.

[62] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[63] The Applicant does not seek reinstatement and it would not be appropriate given the casual nature of his employment.

[64] Section 390(3)(b) provides that I may only issue an order for compensation to the Applicant if it is appropriate in all the circumstances.

[65] I have found that the applicant has been unfairly dismissed and that reinstatement is not appropriate in all the circumstances. I am satisfied that an order for compensation should be made.

[66] Section 392 of the Act sets out the circumstances that must be taken into consideration when determining an amount of compensation, the effect of any findings of misconduct on that compensation amount and the upper limit of compensation that may be ordered provides:

“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.”

[67] The method for calculating compensation under s.392 of the Act was dealt with by a Full Bench of the Commission in Bowden, G v Ottrey Homes Cobram and District Retirement Villages Inc. T/A Ottrey Lodge,[2013] FWCFB 431 (Bowden). In that decision the Full Bench set out the order in which the criteria and other factors should be applied, taking into account authority under the Workplace Relations Act 1996 in Sprigg v Paul’s Licensed Festival Supermarket, (1998) 88 IR 21 and Ellawala v Australian Postal Corporation, Print S5109 (Ellawala). I have adopted the methodology utilised in Bowden in determining the amount of a payment of compensation.

[68] I will now consider each of the criteria in s.392 of the Act.

Remuneration that would have been received: s.392(2)(c)

[69] Much time at the hearing was taken up in debating the earnings and hours worked of the Applicant. There were variations in the hours, especially during the last nine weeks of casual employment. There is also the added complication of the Supported Wage subsidy arrangement. See Transcript PN80 – 108 and PN1058 – 1066 where I explored this issue with Mr Prager.

[70] It appears that there was general agreement that the Applicant worked about 22.5 hours per week most of his time with the Respondent and that the appropriate hourly rate was $14.19. This was conceded by Mr Prager (Transcript PN91). The Respondent sought to discount this for the lesser number of hours worked during the last nine weeks.

[71] Overall, I am satisfied that $319.27 per week would be a reasonable estimated gross average wage. I will use this figure for the calculation of compensation.

[72] I now determine the period of time the Applicant would have remained employed by the Respondent, or would have likely remained employed with the Respondent, had he not been dismissed.

[73] Given the casual nature of his employment I find that three months would have been a reasonable estimate of future employment. The remuneration he would have received is therefore $3,850 rounded up.

Remuneration Earned: - s.392(e)

[74] There was no evidence of the Applicant obtaining alternative employment. I have not applied any discount on this ground.

Income likely to be earned: - s.392(2)(f)

[75] This matter is not relevant.

Other matters: - s.392(2)(g)

[76] There are no other matters that I consider appropriate to consider.

Viability: - s.392(2)(a)

[77] This matter is not relevant.

Length of Service: - s.392(2)(b)

[78] This was not a factor in this case.

Mitigating efforts: - s.392(2)(b)

[79] In considering whether the Applicant has taken steps to mitigate the loss suffered as a result of the dismissal I should take into account whether the Applicant acted reasonably in the circumstances, (Ellawala).

[80] I find that the Applicant’s efforts to mitigate loss have been hampered by his disability.

Misconduct: s.392(3)

[81] No adjustment to the compensation is appropriate on this ground.

Shock, Distress: s.392(4)

[82] I note that the amount of compensation calculated does not include a component for shock, humiliation or distress.

Compensation cap: s.392(5)

[83] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the Applicant, or to which the Applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or half the amount of the high income threshold immediately prior to the dismissal.

[84] The high income threshold component is $66,500.

[85] The amount of compensation I will order does not exceed the compensation cap.

[86] I will order the Respondent to pay to the Applicant an amount of $3,850.

Conclusion

[87] I am satisfied that the Applicant was protected from unfair dismissal, and that the dismissal was unfair and a remedy of compensation is appropriate. In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.

[88] An order (PR580361) will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

S. Kazmar, Applicant;

B. Prager for the Respondent.

Hearing details:

2016

Sydney:

February 23 (telephone conference);

March 3.

Printed by authority of the Commonwealth Government Printer

Steven Kazmar v Test-Rite Imports Australasia Pty Ltd T/A Medalist

[2016] FWC 3008

13 MAY 2016

DECISION