Toni Robinson v The Trustee for the Keating Family Trust t/as Signarama Brendale

[2014] FWC 5215

[2014] FWC 5215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Toni Robinson
v
The Trustee for the Keating Family Trust t/as Signarama Brendale
(U2014/3607)

DEPUTY PRESIDENT SAMS SYDNEY, 4 AUGUST 2014

Application for unfair dismissal remedy - applicant dismissed for poor performance - valid reason for dismissal - Small Business Fair Dismissal Code not properly applied - procedural fairness - requirement to give employee an opportunity to respond to allegations - allegations that applicant running her own business not made out - dismissal procedurally unfair - reinstatement not appropriate - compensation ordered.

[1] This decision will determine an application, filed by Ms Toni Robinson (the ‘applicant’) pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) which seeks a remedy from her alleged unfair dismissal on 20 December 2013. The applicant was dismissed from her job as a Signwriter for reasons of poor performance by the Trustee for the Keating Family Trust t/as Signarama Brendale (the ‘respondent’).

[2] Relevantly, the respondent is a small business, as defined in the Act (s 23) and the respondent claims the applicant’s dismissal was consistent with the Small Business Fair Dismissal Code (the ‘Code’). The matter was conciliated by a Fair Work Conciliator on 27 February 2014, but was not settled. Accordingly, the matter was allocated to me and listed for arbitration in Brisbane on 20 June 2014.

[3] The Commission is satisfied the applicant has standing to bring this application in that:

• the application was filed within the statutory 21 day time limit (s 394(2));
• the applicant is a national system employee (s 380);
• the respondent is a national system employer (s 380);
• the applicant’s employment was governed by an enterprise agreement or Award (s 382);
• the applicant was dismissed by the respondent on 20 December 2013 (s 385(a));
• the applicant had more than one year’s employment with a small business (s 383(b));
• the dismissal was not a case of genuine redundancy (s 396(d)).

THE EVIDENCE

[4] The applicant provided a written statement, as did Mr Jon York, Production Manager, Mr Peter Keating, Business Owner and Mr Joseph Hart, Manager. Somewhat surprisingly, neither party sought to cross examine the witness/es for the other side. However, I required each witness to swear an oath/affirmation that the contents of their statements were true and correct to the best of their knowledge and belief. The central point of difference between the applicant and respondent’s evidence is that the applicant insists that she was never expressly warned her job was in jeopardy, if her performance did not improve.

The applicant

[5] In her written statement, the applicant said that she was approached by Mr York shortly after arriving at work on 20 December 2013, and asked to come upstairs. When she asked if everyone else was upstairs, Mr York replied that only he and Mr Keating were there. However, when she arrived, she found that Mr Hart was also sitting at the desk with Mr Keating. Mr York, who looked tearful and upset, sat with her on the opposite side of the desk. After a moment, Mr York told the applicant that she was being ‘let go’. She responded, ‘Why the fuck would you do this to me now!’ Mr York replied that nobody was hiring before Christmas and that they had wanted to wait until the applicant’s partner returned.

[6] The applicant stated that she left immediately after this exchange. When she rang her partner in tears, he told her that she should go back into the office and ask for reasons in writing as to why she was being ‘let go’. She returned and asked Mr York for a letter in those terms. Mr York replied that it was not yet complete and asked whether he could email it to her. She replied that she would wait for him to complete the letter.

[7] The applicant deposed that while she waited, she had a conversation with Mr Keating as follows:

Mr Keating:	This is not personal, we know you have worked very hard for this place and do extra jobs, like cleaning, but Jon has a vision for this place and he thinks you won’t be able to handle the pace.
The applicant:	You haven’t even given me a chance with the new changes and why you do this now it’s Christmas?
Mr Keating:	We wanted Carl to be back and it will be easier to find a new job in the New Year. Once all the emotions are settled down we can talk again.

The applicant immediately got up and walked downstairs after this exchange.

[8] The applicant said that Mr York eventually came downstairs and handed her a letter. It was expressed in the following terms:

‘Over the past few months Pete and I have been discussing your role within the business and unfortunately we have decided that we will be letting you go.

The main reasons we have come to this decision is that over this past year you have shown very little improvement in areas such as time management and quality control.

You and I had a meeting earlier this year (23-05-13) to address your lack of performance concerning the level of mistakes and quality of work which you were producing.

It was noted in this meeting that immediate improvement was required.

Since this meeting there has not been sufficient improvement and there has also been a number of costly mistakes. It is because of this we’re going to have to let you go.

We will be paying you all of your accrued annual leave along with 2 weeks of severance pay.

Please be aware that this is not a personal decision and I am more than happy to provide you with a letter of recommendation to assist you in finding new work.

You have always been a very nice & friendly person to work with and you will be greatly missed.

I wish you the best of luck for the future,

Jon York’

The applicant noted that the letter was unsigned and not on company letterhead. The date (20-12-13) was handwritten across the top of the document.

[9] The applicant claimed that at no time prior to the meetings held on 23 May and 20 December 2013 was she made aware that her possible dismissal was to be discussed. She was not given the opportunity to have a support person present at either meeting.

For the respondent

Mr Peter Keating

[10] In his written statement, Mr Keating deposed that the applicant had been employed as a qualified Signwriter in April 2011. After several months he had become dissatisfied with the applicant’s performance and asked Mr York to organise a meeting between himself and the applicant to discuss ways of improving her performance. This occurred on 20 December 2012 and Mr Keating attended as a witness. Mr York had listed repeated mistakes that the applicant had made, had explained what was expected of her and offered to assist. It was made clear to the applicant that her job was at risk. Mr York had expressed a view that the issue was one of the applicant’s poor attitude. Mr Keating added that he was aware that Mr York had held another meeting ‘about six months later’ with the applicant with Mr Hart attending as a witness.

[11] Mr Keating claimed that on a number of occasions, he had seen Mr York explaining signwriting processes to the applicant. These were processes of which a qualified Signwriter should have been aware. Mr York had even rearranged his production team to account for her deficiencies. The applicant made a number of costly mistakes, for which she never apologised. Mr Keating believed that these mistakes occurred as a result of her lack of care or poor attitude, rather than her lack of skills.

[12] Mr Keating expressed his frustration that the applicant continually organised her own business ‘on my time’. Mr York had warned the applicant twice about this and on 3 October 2013, Mr York issued a memo to all staff under the hearing ‘TEAM CONDUCT AND BEHAVIOUR’ (see para [22] below). However, the applicant continued to organise her own appointments every day.

[13] Mr Keating emphasised that he believed that the processes of the respondent in relation to the applicant’s dismissal had been legal and fair. Mr York had studied a number of websites, including that of the Commission (see para [25] below). In future, Mr Keating said he would advise Mr York to act more quickly in similar circumstances.

Mr Jon York

[14] Mr York has been Production Manager at Signarama Brendale since 2011 after having worked for the respondent for twelve months. He has been working as a Signwriter since 2006.

[15] In his written statement, Mr York explained that the applicant had been hired as a qualified Signwriter in April 2011. She had also received training from Mr Hayden Bazant of Sign Essentials in operating the printer. Even so, after several months Mr York had formed the view that the applicant’s skills were below what they should have been. He was friendly with her and often assisted with the correct procedures if she was having difficulty.

[16] Mr York said that after he was promoted to Production Manager, Mr Keating had expressed his dissatisfaction with the applicant’s performance. She had made a number of costly mistakes between October 2011 and December 2012. He had given her a verbal warning. He had asked Mr Keating to act as a witness during the course of this meeting in December 2012. He had set out the issues with the quality of her work, her attitude to her colleagues and the areas in which her performance needed to immediately improve. He offered the applicant assistance, if necessary. She replied that she had difficulties with the manufacturing and installation aspects of her job and asked if it would be possible to focus more on design and printer operation. In consideration of the fact that the applicant had had training with the printing machinery and designs software, this change to her role was agreed to, although it was reiterated that her performance was expected to improve within 12 months or she would face dismissal.

[17] Mr York deposed that the applicant continued to ignore Company procedures between January and May 2013. Her performance did not improve and she made further costly mistakes. He held a second meeting with her on 23 May 2013, with Mr Hart acting as a witness. He had explained to the applicant that her performance was still unsatisfactory, improvement was still required and her attention to detail was insufficient. When asked to respond, the applicant had complained that her work was consistently interrupted by customers in person in the store and on the phone. He had explained to her that it was planned that the production department would be moved away from customers. As the business was a small one, it was expected that other staff would answer phones when sales staff were away. The applicant was again told that if her performance did not improve, she risked dismissal.

[18] Mr York claimed that the applicant’s performance did not improve in the time leading up to her dismissal. When she continued to make mistakes, she would be told the correct manner in which to perform her duties. However, this would be met with defensive or aggressive behaviour from her. After the applicant had complained that she was unaware of the status of individual jobs at any given time, he began to print out lists of jobs in progress and run Work in Progress meetings every Monday. He asked the applicant to take notes during these meetings, but she refused to do so.

[19] Mr York referred to an example of the applicant refusing to print out test pages before completing a full job, even after a number of her jobs had to be reprinted due to errors in print quality and colour matching. She had said to Mr York, ‘I’m a qualified signwriter Jon, I know what I’m doing.’

[20] Mr York described the applicant’s attitude to other staff as ‘concerning’ and he provided ‘testimonials’ from other staff and Mr Bazant of Sign Essentials which set out issues with the applicant’s skills, attitude and performance.

[21] Mr York explained that he had issued a memo to the entire production team on 3 October 2013 in the following terms:

‘There have been a few instances recently which have cause significant losses of income and productivity which require immediate attention.

We are not currently facing the abundance of short timeframe work which we have recently been subjected to. Therefore it is reasonable to expect that all work being produced is being done correctly and of perfect quality. It is absolutely unacceptable to have clients come back to us complaining of poor quality workmanship, incorrectly filled quantities or orders being received late due to inefficient work practices.

Each one of us is trade qualified and it is expected that we can work quickly and professionally. If there is any reason why circumstances do not allow for jobs to be completed as detailed in the work order, than [sic] either the sales rep responsible or myself need to be notified immediately. As trade qualified workers it is reasonable to assume that most issues can be identified and resolved with simple common sense.

Changes which must be made immediately are as follows:

• Use of personal mobile phones is only acceptable during breaks and outside of working hours.



• Orders are to be filled efficiently and correctly. If any issues are identified which will impact the order being manufactured correctly and on time a manager is to be notified immediately.



• Staff are to check the information provided in job bags as well as the information in SignVox.



• SignVox is to be updated according to which stage the job is currently in and who is responsible for that stage.



• Staff holidays must be approved in writing by either myself or Peter. Due to being a small team the maximum allowed time for holidays is 2 weeks unless exceptional circumstances apply

As a company we are still in a stage of growth. In the past 12 months we have had to terminate the employment of 3 separate staff members who were unable to work at a level which was conducive to the growth of the business. Mistakes and poor quality workmanship cost us not only in reputation but most importantly it costs money in additional materials and time taken away from productive work.

Our company has grown from a business which the staff have been embarrassed to be associated with to be something we should all be proud of. This is a direct result of the quality of work being put out by the entire production team. It is vitally important that we all recognise that we are judged as a whole and the individual actions we take reflect our entire department.

Please be aware that each member of our production team has played a vital role in building this business to the point where we can all be proud to work here. The purpose of this memo is purely as a reminder that we continue to maintain the level of quality and diligence which has helped build the business into what it is today.’

[22] After issuing this memo, Mr York held a meeting attended by Mr Keating, Mr Scott Kunde, Mr Thompson and the applicant and went through this memo in detail. The applicant continued her personal mobile phone use during working hours.

[23] Mr York said that on 20 December 2013, he had asked the applicant to come into his office. Both Mr Hart and Mr Keating were at their desks when she came in. He had a script ready and had told the applicant that due to her lack of overall improvement, she was being let go. Before he could explain further, the applicant had got up and screamed ‘This is bullshit!’ She left the room, but returned later to ask for a letter setting out the reasons for her dismissal.

[24] Mr York emphasised his view that the applicant’s dismissal was fair and that this application was without merit. She had been warned on two occasions that her job was at risk and she had been given an opportunity to respond. She had been dismissed 12 months after the first warning. He noted that in the process leading up to the applicant’s dismissal, he had used the Commission’s website as a guide and also two other websites headed ‘How to Fire an Employee’ ( and ‘The Right Way to Fire Someone’ ( respectively. He had also used the Commission’s Small Business Fair Dismissal Code Checklist.

Mr Joseph Hart

[25] Mr Hart’s written evidence set out that he had witnessed a formal warning given to the applicant by Mr York on 23 May 2013. He claimed that Mr York had been clear in explaining to the applicant the deficiencies in her performance and setting out that she had made a number of mistakes due to her failure to follow procedures. It was further explained to her that she risked dismissal, if she did not improve her performance and follow appropriate procedures.

[26] Mr Hart said that he had observed Mr York discussing the applicant’s mistakes with her on a number of occasions. Mr York would explain the appropriate manner in which to perform her duties patiently and at length, though the applicant did not take ‘any of this on board’.

[27] Mr Hart drew on his previous experience as a Signage Production Manager and Manager of the Brisbane CBD Branch to support his belief that the types of mistakes, lack of attention to detail and inability to follow operating procedures, were not of the quality expected of a qualified Signwriter. He would have dismissed her long before Mr York had done so, if he had been in the same position.

SUBMISSIONS

For the applicant

[28] In her written submissions, the applicant said that she had been first interviewed by Ms Lee-Anne White, who had been aware that she had had a three year hiatus from the signwriting industry. She had never been given a job description or duty statement in writing.

[29] The applicant submitted that her dismissal was unfair as she had had no knowledge on 20 December 2013 that she was going to be dismissed and referred to paragraph 2 under the heading of ‘Other dismissal’ in the Code, which is as follows:

‘The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement.’

[30] The applicant claimed that prior to entering the meetings on 20 December 2013 and 23 May 2013, she had not been aware that it was to discuss the possibility of her dismissal. She denied that dismissal was mentioned at either meeting in the manner claimed by the respondent. She was not given the opportunity to ask for a support person to be present.

[31] The applicant asserted that some of her colleagues had made errors similar to her own, although she did not particularise them.

[32] The applicant complained that she had been left to run the shop on her own many times. This placed undue pressure on her productivity in her primary role. She was not given written procedures, checklists or professional counselling relevant to the areas in which the respondent claims her performance was lacking.

[33] The applicant noted that mobile phones were not provided to employees and that employees used their own phones for work purposes, both on site and in the shop.

For the respondent

[34] In written submissions, the respondent referred to the applicant’s complaint in her Form F2 Unfair Dismissal Application (which the respondent described as ‘fraudulently completed’) that she had not been given three warnings as to her performance. The respondent submitted that there was no requirement for an employer to give an employee three warnings and referred to the requirement under the Code that ‘the employee must be warned verbally or preferably in writing that he or she risks being dismissed if there is no improvement.’ The evidence of Mr Keating, Mr York and Mr Hart all set out that she had been given two verbal warnings setting out the reasons for the warnings and that she risked dismissal. She was given a chance to respond.

[35] The respondent refuted the applicant’s assertion that she was never appropriately trained. The evidence set out that her training was adequate. Careful steps had been taken to at first, assist her, and when this did not work, to ensure that her dismissal was fair. The respondent was a small company and had relied on the Commission’s website to inform it of the correct procedures. The respondent had even adjusted her role to better suit her and provided her with further training. However, her performance still failed to improve. The respondent stressed that the applicant had been employed as a qualified Signwriter and she had not been able to fulfil the duties of her role.

[36] The respondent described the applicant’s behaviour at the time of her dismissal as aggressive. She would have been afforded the opportunity to have a support person present if she had asked for one.

[37] The respondent submitted that these circumstances had cost the respondent a significant amount of money, time and effort. The application was made ‘vexatiously’ and ‘fraudulently’ in the hope she would obtain further compensation.

CONSIDERATION

[38] The Code deals with dismissals in respect to misconduct and poor performance. There is no issue that the applicant’s dismissal was performance related and not based on misconduct. The Code in this respect states:

‘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.’

[39] The Commission had a difficulty in this case in that neither side sought to cross examine witnesses for the opposite side. This leaves me with the somewhat unsatisfactory predicament that I have unchallenged witness statements from witnesses who give a different account of what occurred in meetings to discuss the applicant’s performance.

[40] However, having observed the parties during the proceeding, I have formed the view that the warnings received by the applicant during meetings with Management on 20 December 2012 and 23 May 2013 did not properly constitute warnings that her job was in jeopardy if she did not improve. The applicant’s dismissal was therefore not compliant with the Code.

[41] I do not doubt meetings were held with the applicant on these occasions, as were other general announcements made to all staff (see para [23]). However, it seems to me that there were such large gaps between these two dates and the eventual dismissal on 20 December 2013 as to query what specific steps the respondent had taken to address its concerns and put in place a clear and tighter review process of the applicant’s performance.

[42] Perhaps the respondent was overly cautious or it was simply getting on with business and choosing to ignore the applicant’s poor performance for many months at a time; but put another way, it seems very strange that if the applicant’s performance was so consistently poor over a 12 month period, why the respondent had not acted earlier to bring these matters to a head.

[43] Corroborating my acceptance of the applicant’s evidence that she had not been properly warned, was her agreed outburst (‘Why the fuck would you do this to me now?’) at the meeting on 20 December 2013. Not only did the applicant have no idea she would be dismissed immediately on that day, it is clear that she was never forewarned that the meeting upstairs with Mr York and Mr Keating was to terminate her employment.

[44] From the respondent’s own letter of dismissal, it was acknowledged that for ‘the past few months, Pete and I have been discussing your role within the business’. There was no evidence that such a discussion had included the applicant - as it should have been.

[45] While compliance with the Small Business Fair Dismissal Code exempts an employer from facing an unfair dismissal application, it should not be lost sight of the fact that the Code itself imports considerations of procedural fairness similar to what is required by s 387 of the Act. That section is as follows:

‘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.’

[46] It will be seen that ss (b) - (e) of s 387 of the Act above might be broadly characterised as issues relevant to whether a dismissed employee was afforded procedural fairness. It is trite to observe that, even if there was a valid reason for an employee’s dismissal, the dismissal may still be held to be unfair if the employee was not afforded procedural fairness. This has been a long held industrial principle adopted and applied by this Commission, its predecessors, other Courts, industrial tribunals and the High Court.

[47] In Wadey v Y.M.C.A. Canberra [1996] IRCA 568, Moore J made clear that an employer cannot merely pay ‘lip service’ to giving an employee an opportunity to respond to allegations concerning the employee’s conduct. His Honour said:

‘In my opinion the obligation imposed on an employer by that section has, for present purposes, two relevant aspects. The first is that the employee must be made aware of allegations concerning the employee's conduct so as to be able to respond to them. The second is that the employee must be given an opportunity to defend himself or herself. The second aspect, the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.’

[48] Nevertheless, procedural fairness steps should be applied in a commonsense and practical way. In Gibson v BosmacPty Ltd (1995) 60 IR 1 (‘Gibson’), Wilcox CJ said at 7:

‘Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer's concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.’

[49] In this case, I am satisfied there was a valid reason for the applicant’s dismissal. In the words of Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, it was not ‘capricious, fanciful, spiteful or ill-founded’. However, I am not satisfied that the process leading up to, and including the applicant’s dismissal, was fair or Code compliant.

[50] In summary, I find that the applicant:

(a) was not made aware of the purpose of the meeting on 20 December 2013 (s 387(b));

(b) was not given any opportunity to defend the allegations of poor performance or explain her conduct (s 387(c)). Had the applicant been made aware of the purpose of the meeting, she may have requested to have a support person attend with her (s 387(e));

(c) While I accept the applicant may have tearfully (even ‘aggressively’) left the meeting after being told she was to be ‘let go’, it was still incumbent on the respondent to provide her with specific reasons for her dismissal and allow her an opportunity to respond. This did not happen.

[51] While I accept the motivations of the employer were not mala fide and accepting it is a small business with little experience in such matters (ss 387(f), (g)), it does seem to me that it was just a little too keen to get the applicant’s dismissal out of the way as quickly as possible. I am not sure that consulting American-based websites about how to ‘fire an employee’ was a particularly smart idea, as it tends to suggest that the respondent had already made its decision to dismiss the applicant. Mr York was clearly distressed and nervous about his role in the matter and the failures of process reflected a certain panic on the respondent’s behalf. He even spoke from a prepared script. Even so, I have sympathy for the respondent’s position and its inexperience with such matters.

[52] Nevertheless, it must follow that the applicant was denied procedural fairness in that the Code was not properly applied, thereby rendering her dismissal ‘unjust’. For completeness, I do not consider there to be persuasive evidence that the applicant was running her business using her mobile phone and the respondent’s time to make her own business arrangements. The applicant said her business was a hobby for which she received no payment.

REMEDY

[53] The applicant does not seek reinstatement or re-employment. Given all the circumstances, I judge reinstatement as inappropriate (s 390(3)).

[54] S 392 of the Act sets out the matters the Commission must take into account when assessing compensation for unfair dismissal. These are:

‘(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.’

[55] I do not consider the order I propose to make will impact on the viability of the employer’s enterprise (s 392(a)). The applicant had relatively short service with the respondent (s 392(b)). This is a neutral factor. I consider that the applicant would not have continued employment with the respondent beyond a further four weeks (s 392(c)). The applicant obtained alternative employment approximately two months after her dismissal (s 392(d)). Ss 392(e) and (f) are not relevant to this matter.

[56] The applicant received two weeks pay in lieu of notice as required by the National Employment Standards (s 117). It was not severance pay as described in the applicant’s termination letter. I would not discount the amount of compensation by this figure. There was no misconduct of the applicant (s 392(3)) and the order contains no component for shock, distress or humiliation (s 392(4)).

[57] I propose to order an amount of four weeks’ pay at $860 per week as compensation for the applicant’s dismissal on 20 December 2013. As this amount is below the compensation cap (ss 392(5), (6)), an amount of $3,440.00 is to be paid by the respondent to the applicant within 14 days of today. I consider that such a result satisfies the ‘fair go all round’ test in s 381(2) of the Act.

[58] Orders to this effect will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Applicant in person.

Mr J York for the respondent.

Hearing details:

2014.

Brisbane:

20 June

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