Umit Deniz v Alvaro Transport Pty Ltd
[2023] FWC 1875
•28 JULY 2023
| [2023] FWC 1875 |
| FAIR WORK COMMISSION |
| DIRECTIONS |
Fair Work Act 2009
s.394—Unfair dismissal
Umit Deniz
v
Alvaro Transport Pty Ltd
(U2022/9596)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 28 JULY 2023 |
Application for an unfair dismissal remedy – remedy
On 30 May 2023, I issued a decision (liability decision)[1] which determined that Mr Umit Deniz had been unfairly dismissed from his employment with the respondent, Alvaro Transport Pty Ltd.
Being satisfied that Mr Deniz (a) made an application for an order granting a remedy under s 394 of the Fair Work Act 2009 (Cth) (Act), (b) was a person protected from unfair dismissal, and (c) was unfairly dismissed within the meaning of s 385 of the Act, the Commission may order Mr Deniz’s reinstatement, or the payment of compensation to Mr Deniz pursuant to s 390(1).
This decision determines the issue of remedy.
Procedural matters
Mr Deniz’s application proceeded to a remedy hearing before me on 12 July 2023.
Permission was granted to the respondent to be represented by a lawyer at the remedy hearing. I was satisfied that s 596(2)(a) of the Act was engaged in circumstances where (a) Mr Deniz’s position with respect to the question of reinstatement was not readily discernible, and (b) Mr Deniz continues to receive workers compensation payments following a workplace injury on 2 May 2022. The application of these matters to the considerations relevant to the order of any remedy under s 390(1) of the Act gives rise to some complexity. I therefore determined to exercise my discretion to grant permission to the respondent on this basis.[2]
It was not possible to conclude the remedy hearing, which was conducted by Microsoft Teams. Mr Deniz refused to continue participating in the hearing and ultimately terminated his connection to the video link during the respondent’s closing submissions. The hearing was adjourned, and directions were issued on 12 July 2023 for the respondent to file the balance of its closing submissions in writing. Mr Deniz was invited to file and serve a response to (a) the witness statements relied upon by the respondent on the question of remedy, and (b) the respondent’s closing submissions.
In response to the 12 July 2023 directions, Mr Deniz filed with the Commission a series of submissions by way of emails dated 14 July 2023. I understand that these submissions are responsive to:
(a) the two witness statements of Ms Sandy Makarov, Human Resources and Work, Health and Safety Manager dated 12 July 2023 and the closing submissions of the respondent, insofar as they deal with the payment of superannuation to Mr Deniz since his dismissal; and
(b) the witness statement of the respondent’s Managing Director, Mr Mario Alvaro dated 12 July 2023.
Further, Mr Deniz sought an extension to file a report from his superannuation fund in support of his position that he has not received superannuation payments from the respondent since his dismissal, while he remains on Workcover. On 26 July 2023, Mr Deniz filed with the Commission four emails which address, in summary, Mr Deniz’s position regarding the amount of superannuation he says he has received from the respondent since 13 April 2022, the taxation deducted from his Workcover payments, and a requirement that he attend his treating practitioner.
Statutory framework
Division 4 of Part 3-2 of the Act deals with remedies for unfair dismissal. Section 390 provides as follows:
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.
Note: Division 5 deals with procedural matters such as applications for remedies.
The Commission may order a remedy for unfair dismissal when a person has been unfairly dismissed and that person was protected from unfair dismissal. Section 381(1)(c) of the Act emphasises that reinstatement is the primary remedy to be considered under Part 3-2 of the Act. As specified by s 390(3), the Commission may order compensation only if it is satisfied that reinstatement of the person is inappropriate and that an order for the payment of compensation is appropriate in all the circumstances of the case.
Accordingly, I consider first whether the reinstatement of Mr Deniz to his role as a Grade 4 HR Truck Driver is “inappropriate.”
Consideration - reinstatement order
It is not clear whether Mr Deniz seeks to be reinstated to his position. During the remedy hearing, Mr Deniz gave evidence that he did not consider that he would be able to work with the respondent in the future. However, Mr Deniz also submitted that he loved his job and if Mr Alvaro acted as the “big man” and provided Mr Deniz with a chance, he would like to “get back into [his] truck.”
The respondent submits that it would be inappropriate to reinstate Mr Deniz. It considers that the relationship is irrevocably damaged and, on any view, would not produce a productive or safe workplace. The respondent submits that Mr Deniz’s behaviour during the remedy hearing was argumentative and disrespectful and is consistent with the type of behaviour which was found to give rise to a valid reason for the dismissal in the liability decision.[3]
Mr Alvaro refers to a threat made to him by Mr Deniz during the course of these proceedings.[4] Mr Alvaro also relies upon a threat that Mr Deniz allegedly made to Mr Alvaro’s son, who is also part of the respondent’s business, on or about 18 October 2022. In circumstances where Mr Alvaro’s son did not give evidence in relation to this event, or at all, I do not attribute any weight to the alleged incident in my consideration.
Mr Alvaro contends that he has lost trust and confidence in Mr Deniz and does not wish to see him return to employment with the respondent.
The Full Bench in Thinh Nguyen and Anor v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter[5] considered the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate. The Full Bench distilled the following propositions:[6]
(a) Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
(b) Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
(c) An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
(d) The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
(e) The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.
In the liability decision, I found that there was a valid reason for Mr Deniz’s dismissal. It was determined that Mr Deniz’s statements to the respondent’s National HR & WHS Manager, when considered collectively, demonstrated a pattern of threatening behaviour by Mr Deniz. These statements had an effect on the National HR & WHS Manager’s feelings of welfare and safety. I was therefore satisfied that Mr Deniz’s conduct gave rise to a sound, well-founded and defensible reason for his dismissal.
Mr Deniz’s submissions in response to the 12 July 2023 directions raise significant doubt about whether, if reinstated, a workable employment relationship could be re-established between Mr Deniz and the respondent’s directors. Mr Deniz submits as follows:
“Also I suggest u check all video and phone conference so Mario see I would stand up to get my partner out of there which he caused tention after seeing her car.in every meeting he has behaved in the same manner which would make me uncomftable to be aro...”
While the concluding statement is cut off, I understand that this submission responds to paragraphs [8]-[9] of Mr Alvaro’s witness statement. These paragraphs concern Mr Deniz’s conduct during the in-person liability hearing at the Commission, which arose in the context of an argument between Mr Deniz and Mr Alvaro and resulted in the hearing being adjourned.[7] I discern from the above extract that Mr Deniz has sought to explain that the reason he stood up during the first day of the liability hearing was to attend to his wife, who had started to cry, and not to “stand over” Mr Alvaro.[8] Further, Mr Deniz submits that Mr Alvaro’s behaviour would make him feel uncomfortable to be around. This submission appears to be consistent with Mr Deniz’s evidence that he does not consider that he would be able to work with the respondent in the future.
While acrimony may arise between parties from the existence of legal proceedings, this is an irrelevant matter to take into account in determining whether reinstatement is appropriate.[9] However, to the extent that a party’s behaviour sheds light upon the likely conduct and attitudes towards the relationships of the parties in the workplace in the event of a reinstatement, this is potentially relevant to the assessment of whether that remedy is appropriate.[10] The hostility that I observed between Mr Deniz and Mr Alvaro during the liability hearing suggests that any restored employment relationship would be perpetuated with ongoing resentment and has the potential to create an unsafe work environment.
The matters at [17] to [20] above collectively weigh heavily against the proposition that a workable employment relationship can be re-established between Mr Deniz and the respondent.
In addition, I consider there is a likelihood that if reinstated, Mr Deniz may be dismissed for misconduct a second time, having regard to the matters to which I refer at [42] of the liability decision. These matters concern Mr Deniz’s foul and offensive language to describe the National HR & WHS Manager. Mr Deniz’s conduct towards the National HR & WHS Manager in this respect post-dates Mr Deniz’s dismissal and these matters were not taken into account in the liability decision. It follows that this constitutes a sound reason to conclude that reinstatement is not an appropriate remedy.[11]
To be weighed against these matters is my conclusion in the liability decision that Mr Deniz was recovering from a substantial workplace injury and was in a vulnerable position at the time of his dismissal. Relevantly, the dismissal without due process at, occurred at a time when Mr Deniz had capacity to commence a return-to-work program following the workplace injury.[12] Further, I determined that Mr Deniz may find it difficult to obtain alternative employment as a consequence of the dismissal, including because of his age.[13] In this respect, Mr Deniz contends that the termination of his employment has affected his “household” which is taken to be a reference to his mental wellbeing and his personal relationships.
On balance, having regard to all of the above matters, I am satisfied that an order reinstating Mr Deniz to his position with the respondent is inappropriate. I consider the circumstances of the dismissal whereby Mr Deniz was in a vulnerable position and could have undertaken a return-to-work program, weigh in favour of making the order. However, these circumstances are outweighed by the matters to which I refer at [21] and [22] above. Significantly, the evidence before me reveals a deep level of hostility between the parties. In the event that the respondent did not take steps to terminate Mr Deniz’s employment on the basis of the matters at [22] above, I do not consider that parties would have the necessary trust and confidence in each other such that a workable employment relationship could be reestablished if a reinstatement order was made.
Accordingly, I decline to make an order for reinstatement as I am satisfied for the purposes of s 390(3)(a) of the Act that such an order is inappropriate.
Consideration – compensation order
Having found that the reinstatement of Mr Deniz is inappropriate, I turn to the issue of whether an order should be made for the payment of compensation to Mr Deniz. Under s 390(3)(b) of the Act, the Commission is not permitted to order the payment of compensation unless it is appropriate in all the circumstances. Accordingly, the question of whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one.[14]
In assessing compensation, the Commission is required, by s 392(2) of the Act, to take into account all of the circumstances of the case, including the specific matters identified in paragraphs (a)-(g) as follows:
(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.
I consider all of the circumstances of the case below, and in undertaking this task apply the long-established methodology for assessing compensation in unfair dismissal cases as outlined by the Full Bench in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[15]
The approach in Sprigg is as follows:[16]
Step 1:Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual
amount he or she would have received if they had continued in their employment
Remuneration that the person would have received, or been likely to receive, if not dismissed (s 392(2)(c))
The consideration commences with an assessment of the remuneration that Mr Deniz would have received, or would have been likely to receive, had he not been dismissed. This requires an estimation of Mr Deniz’s anticipated period of employment;[17] that is, how long Mr Deniz would have remained in employment but for the dismissal, and the remuneration he would have received, or been likely to receive, during that period.[18] There is an element of speculation in in this counterfactual task as it involves an assessment of what would have been likely to happen in the future had the employee not been dismissed.
Mr Deniz contends that his employment with the respondent would have been likely to continue for ten years. The respondent takes a contrary view. It submits that Mr Deniz’s employment would have concluded within a short period of time following the date of his dismissal. In support of its position, the respondent contends that:
(a) but for the procedural failures associated with the manner in Mr Deniz was dismissed, the employment would have been terminated fairly having regard to the valid reason for the dismissal; and
(b) there is no evidence that Mr Deniz would have modified the behaviour that gave rise to a valid reason for the dismissal, such that his employment would have ended “in the not too distant” future.
The respondent relies upon a certificate of capacity dated 19 September 2022 which deemed Mr Deniz to be “suitable to go back to work 5 days per week, from 6am to 2pm, but if patient develops pain in Left foot can rest.”[19] The certificate of capacity specifies that Mr Deniz was suitable for the performance of duties on this basis from 12 September 2022 to 9 October 2022.
While the 19 September 2022 certificate of capacity post-dates Mr Deniz’s dismissal on 15 September 2022, it provides contemporaneous evidence of Mr Deniz’s capacity to perform work from 12 September 2022. The certificate of capacity was not before the Commission during the proceedings which led to the liability decision. The most recent medical evidence available at that time was an 8 September 2022 certificate by Mr Deniz’s general practitioner.[20] I accept that the certificate of capacity dated 19 September 2022 demonstrates that Mr Deniz was fit to perform duties for eight hours per day, five days per week, in the period between 12 September 2022 and 9 October 2022. However, this could not have been a fact known to the respondent prior to the date of the certificate of capacity on 19 September 2022.
I estimate that had Mr Deniz not been dismissed, he would have continued to be employed by the respondent for a further period of eight weeks. I have reached this view having regard to:
(a) the likelihood of the respondent taking steps to terminate Mr Deniz’s employment in the short-term having regard to the matters at [22] above, being conduct concerns that were not taken into account in the liability decision; and
(b) Mr Deniz’s short period of employment of seven months.
The matters at [34] weigh strongly against Mr Deniz’s position that he would have been employed for further ten-year period, and perhaps until he transitioned to a transport management or co-ordination role as contended. There is no evidence that the respondent had contemplated transitioning Mr Deniz to a managerial position, or that it had consulted with Mr Deniz about a possible future opportunity in this respect.
Mr Deniz’s dismissal occurred on Thursday 15 September 2022. Had the dismissal not occurred, Mr Deniz would likely have continued to receive workers compensation payments on 16 September and 19 September 2022. This is because the 19 September 2022 certificate of capacity had not yet been produced. It is noted that 17 September and 18 September 2022 were a Saturday and Sunday.
To identify what Mr Deniz would have been paid for 16 September and 19 September 2022, I have had regard to a spreadsheet prepared by the respondent’s insurer.[21] The spreadsheet relevantly demonstrates that for the period since Mr Deniz’s dismissal on 15 September 2022, to 20 February 2023, Mr Deniz was paid a net sum of $796 per week (based on a gross figure of $935 per week). From 26 April 2023, the net figure that Mr Deniz was paid reduced to $760 per week (based on a gross sum of $880 per week).
Consistent with this, Mr Deniz filed a WorkSafe Payment/Reimbursement document dated 10 July 2023 which specifies that for the weekly period between 15 July and 21 July 2023, he was paid a net sum of $760 based on a gross figure of $880.[22] I am therefore satisfied that the spreadsheet produced by the respondent’s insurer accurately aligns with the remittance statement produced by Mr Deniz.
Having regard to this material, I find that Mr Deniz would have received $374 gross in workers compensation payments for 16 September and 19 September 2022. This figure is derived by dividing the weekly gross payment of $935 per week by 5, which yields a daily figure of $187 gross. The daily figure of $187 gross has been multiplied by 2 (representing the two days that preceded the 19 September 2022 certificate of capacity, being 16 September and 19 September 2022).
I turn now to the period between 20 September 2022 (representing the first working day following production of the 19 September 2022 certificate of capacity) to 10 November 2022 (representing the conclusion of the eight-week anticipated employment period). To determine the remuneration that Mr Deniz would have received or been likely to receive during this period upon his likely return to work in accordance with the certificate, I have had regard to Mr Deniz’s casual patterns of engagement.[23] I consider that this provides an acceptable basis upon which to assess the average hours of work performed by Mr Deniz prior to the workplace injury. This document demonstrates that Mr Deniz performed an average of 34.01 hours per week. This is less than the 40 hours per week for which the 19 September 2022 certificate of capacity cleared Mr Deniz to work.
While the 19 September 2022 certificate of capacity only covers the period to 9 October 2022, I proceed on the basis that Mr Deniz would likely have been capable of continuing to work within the limitations identified in the 19 September 2022 certificate of capacity for the entirety of the eight-week anticipated period of employment. There is no further medical evidence before the Commission which overrides the position in this certificate of capacity. I therefore find that Mr Deniz would have worked an average of 34.01 hours per week for the period between 20 September and 10 November 2022. This is a period of approximately 7.3 weeks.
The evidence before the Commission demonstrates that Mr Deniz was paid a gross average weekly pay of $1,412.48 in return for working an average of 34.01 hours per week prior to his workplace injury.[24] In addition, Mr Deniz was paid meal allowances of between $16.85 and $67.40 each pay period.[25] Notwithstanding the respondent’s evidence to the contrary,[26] the meal allowances have not been included in the respondent’s calculation of Mr Deniz’s gross average weekly pay, and amount to an average of $30.64 per pay period.[27]
Accordingly, for the 7.3 weeks between 20 September and 10 November 2022, I find that Mr Deniz would have been paid $10,534.77 gross (($1,412.48 x 7.3) + ($30.64 x 7.3)).
Accordingly, for the purposes of step 1 in Sprigg, the remuneration Mr Deniz would have received, or have been likely to have received, if the respondent had not terminated the employment is $10,908.77 gross. This is comprised of the gross sums of $374 calculated in accordance with [39] above, and $10,534.77 calculated in accordance with [43] above. This is the starting point.
Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))
Mr Deniz has been in receipt of workers compensation payments since his workplace injury on 2 May 2022. Mr Deniz was paid 100% of his wages for the first 13 weeks after his injury. Thereafter, Mr Deniz’s workers compensation payments reduced to 80% of his pre-injury average weekly earnings.
In the eight-week period I have estimated to represent Mr Deniz’s anticipated period of employment (that is, the period between 16 September and 10 November 2022), Mr Deniz received a workers compensation payment of $935 gross per week (being $796 net).
Therefore, Mr Deniz’s earnings from workers compensation over the eight-week anticipated period of employment for the purposes of s 392(2)(e) of the Act were $7,480 gross ($935 x 8 weeks).
Monies earned after the end of the eight-week anticipated period of employment are not deducted. This is because the calculation is intended to put Mr Deniz in the financial position that he would have been in but for the unfair dismissal.[28] It follows that there is no remuneration likely to be earned that I need to take into account for the purpose of s 392(f) of the Act, noting that the eight-week anticipated period of employment has now passed.
I make no deductions for the payment of superannuation over this eight-week period. Ms Makarov’s evidence is that Mr Deniz has continued to receive superannuation payments from the respondent since his dismissal. This point is contested by Mr Deniz. The spreadsheet prepared by the respondent’s insurer and referred to at [37] above demonstrates that Mr Deniz received 11 superannuation contributions from the respondent during 2023 of an amount between $92.40 and $96.80.[29] However, Mr Deniz relies upon an extract of two reports from his superannuation fund in support of the contention that while Mr Deniz received superannuation contributions between 13 April and 25 October 2022, he has not received any since that time.[30] In the circumstances, I consider it appropriate to exclude superannuation payments from my calculations because the material before the Commission does not enable me to reach a concluded view on the issue. In proceeding in this way, it is not suggested that the respondent has not complied with its superannuation obligations with respect to Mr Deniz. Any residual concerns held by Mr Deniz can be raised with his superannuation fund.
The respondent also contends that the Commission should make a deduction on the basis that Mr Deniz has been in receipt of approximately $300 per week in Centrelink benefits. I decline to do so. It is well established that while workers compensation payments are included in the amount of remuneration earned, social security payments are not.[31] Accordingly, I have not taken into consideration the Centrelink benefits received by Mr Deniz or made any deductions on this basis.
Accordingly, for the purposes of step 2 in Sprigg, the remuneration earned by Mr Deniz during the eight-week anticipated employment period is limited to the workers compensation payments received by Mr Deniz for that period, being a sum of $7,480 gross. This amount is deducted from the starting point of $10,908.77 gross and yields a figure of $3,428.77 gross ($10,908.77 - $7,480).
Any other matters (s 392(2)(g))
I have considered whether any discount should be made for contingencies, consistent with step 3 in Sprigg.[32] A discount for contingencies is a means of taking into account the various probabilities that might otherwise affect earning capacity.[33] However, in circumstances where the eight-week anticipated period of employment has entirely passed, I do not consider that in the circumstances of this case,[34] a deduction should be made for contingencies. This is because there is no relevant uncertainty that needs to be accounted for in that eight-week period.
Further, with respect to step four in Sprigg, I have considered the impact of taxation. Compensation will be determined as a gross amount, and it will be left to the respondent to deduct any amount of taxation required by law. There are no other matters that are relevant in determining an amount of compensation apart from those to which I now turn.
Effect of the order on the viability of the respondent’s enterprise (s 392(2)(a))
There was no evidence or submissions made that any particular amount of compensation would affect the respondent’s viability.
Length of service (s 392(2)(b))
The length of Mr Deniz’s casual employment with the respondent was seven months. I do not consider this period to justify any increase or reduction to the amount of any compensation ordered.
Mitigation efforts (s 392(2)(d))
Mr Deniz must provide evidence that he has taken reasonable steps to minimise the impact of the dismissal.[35] What is reasonable depends on the circumstances of the case.[36] The respondent submits that Mr Deniz has on his own account, made no attempts to mitigate his loss by seeking alternative employment. However, I consider it evident that Mr Deniz made a reasonable effort to mitigate his loss by taking steps to establish a gardening business. I am satisfied that no discount to the provisional compensation sum ought to be applied.
Misconduct (s 392(3))
Having regard to my findings as to the valid reason for Mr Deniz’s dismissal, I am satisfied that Mr Deniz’s misconduct contributed to the respondent’s decision to dismiss him.[37] Accordingly, I am obliged by s 392(3) of the Act to reduce the amount of compensation I would otherwise order by an appropriate amount on account of the misconduct.
In all the circumstances, I am satisfied that the appropriate amount by which to reduce the amount of the order for compensation on account of misconduct is 20%.[38]
Applying this reduction to the provisional compensation sum of $3,428.77 gross, the gross amount of compensation to be ordered, subject to the matters discussed below, is $2,743.02 gross ($,3428.77 – 20% ($685.75)).
Instalments (s 393)
The respondent did not seek to pay any award of compensation by instalments. No order will be made to that effect.
Shock, distress (s 392(4))
The amount of compensation calculated does not include a component for shock, humiliation or distress.
Compensation cap (s 392(5))
The amount $2,743.02 gross is less than the compensation cap in s 392(5) of the Act in relation to Mr Deniz.
Conclusion
Having applied the formula in Sprigg, I am nevertheless required to ensure that the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.[39]
I am satisfied that the above analysis takes into account the matters set out in s 392(2) of the Act, and the compensation that I have determined is, appropriately, neither excessive nor inadequate having regard to all the circumstances of the application.
I consider it appropriate to make an order that the respondent pay Mr Deniz the sum of $2,743.02 gross less taxation as required by law, within seven days of this decision.
Disposition
An order[40] for the payment of compensation by the respondent to Mr Deniz $2,743.02 gross, less taxation as required by law, will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr U. Deniz on his own behalf
Mr M. Baroni on behalf of the respondent
Hearing details:
2023.
Melbourne (by video using Microsoft Teams)
12 July
Final written submissions:
26 July 2023
[1] [2023] FWC 1273
[2] See, Calleri v Swinburne University of Technology[2017] FWCFB 4187 at [36]
[3] Liability decision at [88]-[89] and [91]
[4] Witness statement of Mr Mario Alvaro dated 12 July 2023 at [8]
[5] [2014] FWCFB 7198 (Nguyen)
[6] Ibid at [27]
[7] Transcript of proceedings dated 1 March 2023 at [311]-[431]
[8] Witness statement of Mr Mario Alvaro dated 12 July 2023 at [8]
[9] See Nguyen at [37]-[38]
[10] Jeremy Lee v Superior Wood Pty Ltd[2020] FWCFB 1301 at [55]
[11] See, Angele Chandler v Bed Bath N' Table[2020] FWCFB 6714 at [71]
[12] Liability decision at [56]
[13] Liability decision at [128], [131] and [133]
[14] Nguyen at [9]
[15] Print R0235; (1998) 88 IR 21. This approach was articulated in the context of the Fair Work Act 2009 (Cth) in Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431; 229 IR 6 and Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206 at [16] (Double N Equipment Hire)
[16] Print R0235; (1998) 88 IR 21
[17] See Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) (Ellawala) at [34]
[18] He v Lewin [2004] FCAFC 161 at [58]
[19] Annexure SM2 to the witness statement of Ms Sandy Makarov dated 12 July 2023
[20] See, liability decision at [49]
[21] Annexure SM4 to the witness statement of Ms Sandy Makarov dated 12 July 2023
[22] WorkSafe Payment/Reimbursement dated 10 July 2023 filed by Mr Deniz on 14 July 2023
[23] Annexure SM7 to the witness statement of Ms Sandy Makarov dated 12 July 2023
[24] Annexure SM7 to the witness statement of Ms Sandy Makarov dated 12 July 2023
[25] Annexure SM6 to the witness statement of Ms Sandy Makarov dated 12 July 2023
[26] Annexure SM3 to the witness statement of Ms Sandy Makarov dated 12 July 2023
[27] Annexure SM6 to the witness statement of Ms Sandy Makarov dated 12 July 2023
[28] Ellawala at [35]
[29] Annexure SM4 to the witness statement of Ms Sandy Makarov dated 12 July 2023
[30] Email from Mr Deniz with the subject line “Super” dated 26 July 2023
[31] Shorten v Australian Meat Holdings Pty Ltd (1996) 70 IR 360, citing Mullany v Active Concrete (1995) 64 IR 237
[32] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001) at [39]
[33] Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; 184 CLR 485 at [497]; Ellawalla at [43]
[34] Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431; 229 IR 6 at [53]
[35] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002) (Biviano) at [54] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001) at [45]
[36] Biviano at [54]
[37] Read v Gordon Square Child Care Centre Inc[2013] FWCFB 762 at [83]
[38] See, Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge[2013] FWCFB 431; 229 IR 6 at [59]
[39] Double N Equipment Hire at [17]
[40] PR764702
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