Thomas Vernham v Jayco Corporation Pty Ltd T/A Jayco

[2016] FWC 1646

[2016] FWC 1646

FURTHER DECISION IN REGARD

TO REMEDY

Fair Work Act 2009
s.394—Unfair dismissal
Thomas Vernham
v
Jayco Corporation Pty Ltd T/A Jayco
(U2015/3766)
COMMISSIONER CRIBB	MELBOURNE, 16 MARCH 2016

Application for relief from unfair dismissal - compensation in lieu of reinstatement.

[1]        This decision concerns determination of an amount of compensation, in lieu of

reinstatement, to be ordered by the Fair Work Commission (the Commission), pursuant to

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section 392 of the Fair Work Act 2009 (the Act). It follows the decision issued on 8

December 2015 in which the Commission found that Mr Vernham had been unfairly

dismissed. In that decision, the Commission was unable to finally determine an amount of

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compensation as there was insufficient material before the Commission at that time.

[2]        Accordingly, Mr Vernham was directed to provide to the Commission, and to the

Respondent, evidence of his efforts to mitigate his loss. If Mr Vernham had been unable to

make those efforts due to mental health or physical issues, evidence supporting this

contention needed to be provided (section 392(2)(d)). In addition, Mr Vernham was directed

to provide evidence of any remuneration earned between 18 February 2015 and 8 December

2015 and likely to be earned between 9 December 2015 and 17 February 2016 (section

392(2)(e)). The company was requested to provide details of any notice in lieu that was paid

to Mr Vernham.

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[3] On 29 January 2016, on behalf of Mr Vernham, a witness statement was filed stating

that he had not been able to seek alternative employment due to suffering from an incapacity

to work due to his work-related shoulder and spine injuries. Certificates of incapacity for the

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period from 2 February 2015 to 7 January 2016 were provided. In addition, Mr Vernham

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provided an updated report from Ms Tan in relation to his mental health treatment progress.

Further, Mr Vernham provided evidence of the quantum of WorkCover payments received

from the company. [2016] FWC 1646

[4]        Jayco, on 25 February 2016, informed the Commission and Mr Vernham’s

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representative, that no payment in lieu of notice was made to Mr Vernham.

[5]        As the Commission is now in receipt of all of the necessary information, the

Commission will now deal with determination of an amount of compensation.

1. Remuneration that would have been received (section 392(2)(c))

[6]        It has previously been decided that, if Mr Vernham had not been dismissed, he would

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have continued to work for a further year. Over that period, the remuneration that Mr

Vernham would have received or would have been likely to receive from the company is

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$42,639.91 (gross).

2. Efforts to mitigate loss (section 392(2)(d))

[7]        Mr Vernham has provided Certificates of Capacity for the period from 2 February

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2015 to 7 January 2016. Each of these certificates state that Mr Vernham has no capacity for

employment during that period due to lower back strain, neck injury and left elbow injury.

Therefore, I am satisfied that Mr Vernham has been unable to find suitable alternative

employment due to his lack of capacity for employment during the relevant period.

3. Remuneration earned (section 392(2)(e) and income reasonably likely to be earned

(section 392(2)(f))

[8]        From Mr Vernham’s witness statement of 28 January 2016, together with the

documentary evidence provided, it appears that, in addition to Centrelink payments, Mr

Vernham received WorkCover payments from the company. On the basis of the material

before me, it appears that, on 18 February 2015, Mr Vernham received $617 in WorkCover

payments, together with further WorkCover payments on 5 March 2015 ($1320), 11 March

2015 ($617) and 18 March 2015 ($278.40). This comes to a total of $2,832.40. On the

evidence before me, no further WorkCover payments appear to have been received from the

company by Mr Vernham since 18 March 2015.

[9]        As the company has stated that there was no payment in lieu of notice made to Mr

Vernham, there is no addition to the amount of $2,832.40 as remuneration earned.

[10]      Therefore, the provisional amount is $42,639.91 (gross) less $2,832.40 (gross)

(remuneration earned) which equals $39,807.51 (gross).

4. Section 392(3)

[11]      As previously found, the Commission proposed to reduce the amount that would

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otherwise be ordered by 40%. This results in a provisional amount of $23,884.51 (gross).

[2016] FWC 1646

5. Other matters (section 392(2)(g))

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[12] As set out in the previous decision , it is proposed to make a deduction of 15% for

contingencies. This results in a provisional amount of $20,301.83 (gross).

6. Section 392(5) - compensation cap

[13]      Since the provisional amount of compensation ($20,301.83 (gross) is less than the

amounts provided for in section 392(5) of the Act, I make no further reduction for that reason.

Conclusion

[14]      Therefore, it is considered appropriate to make an order that Jayco Corporation Pty

Ltd pay $20,301.83 (gross), less taxation as required by law, in compensation to Mr Vernham

in lieu of reinstatement, within 21 days of the date of this decision.

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[15] An order to this effect will be issued separately.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR578025>

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[2015] FWC 8185

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Ibid at [119]

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Witness Statement of Thomas Vernham, dated 28 January 2016, at paragraph 2

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Ibid at Attachment TVS 1

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Ibid at Attachment TVS 3

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Email from Jayco’s representative, dated 25 February 2016

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[2015] FWC 8185 at [99]

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Ibid at [100]

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Witness Statement of Thomas Vernham, dated 28 January 2016, at Attachment TVS 1

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[2015] FWC 8185 at [114]

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Ibid at [115]

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PR578026