Wayne Smith v Heritage Motels and Restaurants

[2016] FWC 4843

[2016] FWC 4843

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne Smith
v
Heritage Motels and Restaurants
(U2015/12886)

DEPUTY PRESIDENT DEAN SYDNEY, 9 AUGUST 2016

Application for unfair dismissal remedy – whether dismissal was harsh, unjust and unreasonable – compensation ordered.

Introduction

[1] On 16 September 2015 Mr Wayne Smith (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Heritage Motels and Restaurants (ABN 45 310 844 897)(the Respondent). The Respondent operated the Goulburn Heritage Motel and Restaurant (the Motel), located in Sydney Road, Goulburn NSW.

[2] The Applicant was employed by the Respondent from October 2011 until his dismissal on 28 August 2016. During his employment he performed a range of duties including gardening, house keeping, kitchen hand, and night manager.

[3] For the reasons set out below, I have found that the Applicant was unfairly dismissed, and that an order of compensation in the amount of $7,446.37 is appropriate in the circumstances.

Background

[4] On 23 October 2015 Mr Victor Ollis on behalf of the Respondent filed a Form F3 – Employer Response to Unfair Dismissal Application (the Employer Response).

[5] This matter was listed for conciliation in November 2015, together with an application for remedy for unfair dismissal made by Ms Melisa Morgan against the same Respondent.

[6] Conciliation was initially attempted by phone during November 2015, however Mr Ollis advised that the Respondent had been evicted from the Motel and a new operator had taken control on 4 November 2015. Mr Ollis also advised that his employment with the Respondent had ended, and that he believed that the Respondent was in liquidation or receivership. The Applicant was contacted to explain what he understood the situation to be. He was of the belief that the Respondent was not in liquidation or receivership, and on that basis the matter was referred to hearing.

[7] A Directions Hearing by telephone was listed on 18 December 2015. The transcript reveals that Mr Ollis participated in the early part of the hearing. Mr Ollis stated:

“I’m not here for the company and I have been told by Mr Edwards, who is the company director, that I am not to give any information or to answer or to participate as a company representative.” 1

[8] Mr Ollis was advised that he should not participate on that basis, which he did.

[9] I note here that Mr Mark Edwards, the director of the Respondent, is the son of Mr Ollis.

[10] The Applicant was assisted during this process initially by his daughter and subsequently by Ms Melisa Morgan, who was also a former employee of the Respondent, and who was pursuing her own application for relief from unfair dismissal.

[11] The Applicant and Ms Morgan were directed to provide a chronology of their employment, all employment documents, contracts or correspondence, group certificates or payslips that they had been provided with by early February 2016. Some material was provided to the Commission in mid-May 2016.

[12] I held a further Directions hearing on 8 June 2016 to set a hearing date. The Notice of Listing was sent to the Respondent by both email and post and with a request to contact the Commission if there was any change of contact person or telephone number listed. The Respondent did not do so.

[13] Consequently the unfair dismissal application was set down for a hearing. The Notice of Listing for this hearing was sent to the Respondent by registered mail to the ‘Address for service of documents’ listed in the ASIC database for the Respondent. It was also sent by email to the email address provided in the Employers Response.

The hearing

[14] Both the Applicant and Ms Morgan’s applications were listed before me in Canberra on 21 June 2016. The matters were listed separately as the circumstances of each dismissal differed. Ms Morgan’s application was listed at 10.30am and the Applicant’s at 1.00pm.

[15] There was no appearance by the Respondent at 10.30am. At this time further attempts were made to contact the Respondent. This included contacting Mr Ollis, who again refused to provide any contact details for Mr Edwards. The current operators of the Motel were contacted, and were able to provide a mobile number for Mr Edwards. At approximately 11.00am Mr Edwards answered the phone. My associate explained who she was and why she was calling. Mr Edwards indicated that he was formerly a director of the Respondent, that he was personally bankrupt and the company in liquidation, and that he would not be attending any hearings. My associate explained that an order could be made in his absence, however he confirmed he would not attend, even if the hearings were deferred to another date. My associate asked Mr Edwards to provide details of the liquidator, however he refused to do so. He then stated that any further correspondence should be in writing to his email address, which he supplied, and he then ended the call.

[16] At the commencement of this hearing at 1.00pm, the Applicant was in attendance and there was no appearance by or on behalf of the Respondent.

[17] Based on the conversation earlier that morning with Mr Edwards, I was satisfied that the Respondent:

a. was served with and responded to the Application;

b. knew about the hearing and the consequences of non-attendance; and

c. made a decision not to attend or participate in the proceedings.

[18] I decided in the circumstances that it was fair and reasonable to proceed in the absence of the Respondent.

The Respondent

[19] It is appropriate at this juncture to deal with the assertion that the Respondent was in liquidation.

[20] There was no evidence from ASIC searches of the ABN of the Respondent, conducted in June and August 2016, that the Respondent was in liquidation.

[21] When asked, Mr Edwards refused to provide any evidence (ie. name or contact details) of a liquidator.

[22] Other entities, which might have been related to the Respondent (eg Goulburn Heritage Lodge Pty Ltd), were identified in ASIC searches as being in liquidation or administration, however there was no evidence that the Respondent was in liquidation.

[23] I am satisfied, based on the material outlined in the above paragraphs, that the Respondent was not in liquidation.

The Evidence

[24] The Applicant was self-represented and gave evidence on his own behalf. He was assisted by Ms Morgan.

[25] The Applicant submits he was unfairly dismissed and seeks a remedy of compensation.

[26] The Applicant gave evidence that he was employed in October 2011, initially on a casual basis and then on a full time basis after the first 12 months.

[27] His role was multifaceted, and included gardening, housekeeping, kitchen hand and maintenance duties. In his written statement 2, the Applicant stated that he was expected to be ‘on personal call for Victor’s every whim such as his personal shopping and assisted him each morning putting his shoes and socks on as he was unable to do this himself’. In short, he did ‘anything that was required of me by Vic ...’3

[28] The Applicant gave evidence that on the afternoon of 28 August 2015, he finished work and was asked by Mr Ollis to come upstairs to speak with him. Mr Ollis then said words to the effect of:

“Look, I don’t need you anymore. The garden can take care of itself. I might get you back in a couple of months if we need it, but other than that, I don’t need you anymore, you are fired.” 4

[29] The Applicant stated that he thought Mr Ollis would ‘do the right thing’ by him, however he was not paid his termination payment, any accrued and untaken leave, or any superannuation.

[30] The Applicant gave evidence that he was a loyal employee who had the best interests of the business in mind at all times, and always promoted the business to the best of his abilities. He further submitted that he had never received any warning regarding his performance, nor was there any suggestion at the time of his dismissal that performance or conduct were an issue.

[31] The evidence of the Applicant was not contested. The Applicant presented credibly, and I accept his evidence.

Protection from Unfair Dismissal

[32] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[33] 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.”

[34] I am satisfied that the Applicant has completed the minimum employment period based on his length of service, and is covered by a modern award 5. Modern award coverage was also confirmed by information provided in the Employer Response. Consequently, I am satisfied the Applicant was protected from unfair dismissal.

[35] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the Act.

Was the dismissal unfair?

[36] A dismissal is unfair if the Commission is satisfied, on the evidence before it, 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
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

Was the Applicant dismissed?

[37] A person has been 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.”

[38] I am satisfied, based on the evidence of the Applicant and the information provided in the Employer’s Response, that the Applicant was dismissed within the meaning of s386(1)(a).

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[39] A person has not been unfairly dismissed where the dismissal is consistent with the Small Business Fair Dismissal Code (the Code).

[40] To be satisfied that a dismissal was consistent with the Code the Respondent must be a ‘small business employer’ for the purposes of the Act, which is defined at s.23(1):

“23(1) Meaning of small business employer
A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.”

[41] The Employers Response confirms that there were 30 employees at the time of the Applicants dismissal. Accordingly I am satisfied that the Respondent was not a small business employer within the meaning of s.23 of the Act at the time the Applicant was dismissed.

Was the dismissal a genuine redundancy?

[42] Redundancy was not argued by the Respondent as a reason for the dismissal. Had it been, I would have found that the dismissal was not a genuine redundancy as there was no evidence of compliance with the consultation obligations under s389(1)(b) of the Act.

[43] There is no suggestion or evidence to support a finding that the Applicant’s dismissal was a genuine redundancy.

Harsh, unjust or unreasonable

[44] Having been satisfied of each of s.385(a),(c)-(d) of the Act, the Commission must consider whether it is satisfied the dismissal was harsh, unjust or unreasonable. The criteria the Commission 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.”

[45] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 6 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.”

[46] I will now consider each of the criteria at s.387 of the Act separately.

Valid reason - s.387(a)

[47] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 7 The reasons should be ‘sound, defensible and well founded’8 and should not be ‘capricious, fanciful, spiteful or prejudiced’.9

[48] The question I must address here is whether there was a valid reason for the dismissal related to the Applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).

[49] The reason proffered by the Respondent for the Applicant’s dismissal was that he was not needed as the garden could take care of itself. The Applicant gave evidence, which I accept, that:

“He said the garden was dying off. It’s at the end of winter and the beginning of spring. The garden and lawn were just coming on, all the flowers were out. There’s always something to do in the garden … Winter is the slow months … Spring, the buses were starting to come in; the garden needed attending. That’s why I couldn’t work it out”. 10

[50] It is clear from the evidence that the Applicant’s role entailed significantly more than just gardening. There was no suggestion at the time of the Applicant’s dismissal that his remaining duties were no longer required to be performed by anyone.

[51] The Applicant also gave evidence that he was due to have cataract surgery two weeks later, and had told Mr Ollis some months beforehand that he wanted to take leave to cover his surgery and recovery time. He stated that he believed the reason for his dismissal was that the Respondent did not want to have to pay him any leave payments for this period.

[52] On the evidence before me, I find that the reason given to the Applicant was not related to his capacity or conduct, nor was it the real reason for his dismissal. I have already accepted the evidence of the Applicant outlined above, and further I accept the Applicant’s evidence that the Respondent subsequently refused to pay him his outstanding entitlements (including leave and superannuation) on the termination of his employment. This supports the view of the Applicant that his dismissal was motivated by matters other than was stated by Mr Ollis at the time of his dismissal.

[53] The reason given to the Applicant was not related to his capacity or conduct. Accordingly, I am not satisfied that there was a valid reason relating to the Applicant’s capacity or conduct.

Notification of the valid reason - s.387(b)

[54] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 11 in explicit terms12 and in plain and clear terms.13 In Crozier v Palazzo Corporation Pty Ltd14 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.” 15

[55] No valid reason was provided to the Applicant before he was dismissed. It follows, then, that he was not notified of a valid reason for his dismissal, and I so find.

Opportunity to respond - s.387(c)

[56] 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. 16

[57] The Applicant was asked during his evidence whether he was given any opportunity to respond or discuss the decision with Mr Ollis. His response was:

“No, no. He got very angry … it was better for me to walk away … I thought he would do the right thing by me and get in touch with me in the next couple of days and settle whatever he had to settle with me … but he turned out to just totally disregard me …”. 17

[58] While I am satisfied and find that the Applicant did not have an opportunity to respond to the reason for the dismissal, this is a neutral consideration as his dismissal did not relate to his capacity or conduct.

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

[59] 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.

[60] The evidence of the Applicant is that he was called in to speak with Mr Ollis at the conclusion of his shift. He had no idea of the nature of the meeting and described it as a ‘sudden dismissal’. I accept that he was not provided with any indication prior to the meeting that his employment was in jeopardy. He was therefore unaware that he could have had a support person with him.

[61] While the Respondent did not refuse to allow a support person, the manner in which the dismissal was effected meant that the Applicant had no opportunity to have a support person present.

Warnings regarding unsatisfactory performance - s.387(e)

[62] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 18

[63] There was no evidence that the dismissal related to unsatisfactory performance, and accordingly this consideration is not relevant.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[64] The size of the Respondent’s enterprise, and the absence of dedicated human resource management or expertise in the Respondent’s enterprise, may have impacted on the procedures followed by the Respondent in effecting the dismissal.

[65] The Applicant agreed with the information contained within the Employer’s Response that there were around 30 employees at the time of the Applicant’s dismissal. While not a ‘small business employer’ within the meaning of the Act, it is clear that this is a relatively small enterprise, and this is likely to have an impact on the procedures it followed when dismissing the Applicant.

[66] The Applicant also gave evidence, which I accept, that the Respondent did not have a dedicated human resource specialist.

[67] While these factors may often weigh in favour of a finding that the dismissal was not unfair, this is balanced out in this case by the manner in which the Applicant was dismissed by Mr Ollis. The size of the enterprise or absence of human resources specialists do not, in my view, excuse a lack of basic decency. I therefore consider this to be a neutral factor.

Other relevant matters - s.387(h)

[68] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I consider the following matters to be relevant to the determination of whether the dismissal of the Applicant was harsh, unjust or unreasonable.

[69] I have had consideration to the following:

a. The Applicant was a disability worker and had a number of health issues. An organisation named Disability Trust was assisting him with finding alternative employment however he had not been successful in finding work;

b. The Applicant’s age; and

c. The hardship that the suddenness of the dismissal caused the Applicant.

Conclusion

[70] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable. Accordingly, I find the Applicant’s dismissal was unfair.

Remedy

[71] 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 Commission may make the order only if the person has made an application under section 394.

(3) The Commission 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.”

[72] I have already dealt with the issues at s.390(1)(a)–(b) above. I am satisfied that the Applicant was protected from unfair dismissal pursuant to s.382 of the Act and the Applicant was dismissed unfairly. Accordingly, I am required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, to order for compensation if it is satisfied such an order is appropriate in all the circumstances.

Reinstatement

[73] The Applicant seeks compensation as the primary remedy. Regardless of the remedy sought by the Applicant, s.390 of the Act requires that I first determine whether reinstatement is appropriate before I may consider an order for compensation.

[74] The Applicant submits that reinstatement would be inappropriate because the Respondent no longer operates the Motel. It is clear from the evidence that the Respondent ceased operating the Motel from 4 November 2015. On that basis, I find that reinstatement is inappropriate.

Compensation

[75] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation to the Applicant if it is appropriate in all the circumstances.

[76] I am satisfied, based on the evidence above and my findings relating to the unfairness of the Applicant’s dismissal, that an order for compensation is appropriate in all the circumstances of this case.

[77] 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:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 392(5) indexed to $69,450 from 1 July 2016

(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.”

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

Effect of the order on the viability of the employer’s enterprise: s.392(2)(a)

[79] The Respondent is no longer operating the Motel, however there is no evidence that the Respondent is in liquidation.

[80] I find an order for compensation in the amount proposed will not affect the viability of the Respondent’s enterprise.

Length of service: s.392(2)(b)

[81] I find that the Applicant’s period of service with the Respondent, being 3.9 years should not affect the amount of compensation to be ordered.

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

[82] The Applicant’s remuneration with the Respondent was $817 gross per week. This was evidenced by a payslip tendered by the Applicant.

[83] I find that the Applicant would likely have remained employed by the Respondent until 4 November 2015, being the date upon which the Respondent ceased to operate the Motel. There is no evidence of unsatisfactory performance or conduct by the Applicant, or any other evidence to suggest that the Applicant’s employment would have ended prior to this date.

[84] The amount the Applicant would have received is therefore $7,936.57.

Mitigating efforts: s.392(2)(d)

[85] 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. 19

[86] The evidence of the Applicant, which I accept, is that he had made efforts to look for alternative employment, and was assisted by an employment agency in Goulburn called Disability Trust. His evidence, outlined above, demonstrate that he was taking all reasonable steps to find work.

[87] I find that the Applicant has taken reasonable steps to mitigate his loss suffered as a result of the dismissal.

Remuneration earned: s.392(2)(e)

[88] The Applicant’s evidence is that he had obtained 3 days’ work with the new operators of the Motel since his dismissal.

[89] I will make a deduction of $490.20 from the compensation to be ordered as a result.

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

[90] Based on the evidence of the Applicant, I find the Applicant is unlikely to earn any income during the period between the making of the order for compensation and the actual compensation.

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

[91] I find that there are no other matters which might affect an order for compensation.

Misconduct: s.392(3)

[92] I have not found any misconduct by the Applicant that contributed to the dismissal.

Shock, Distress: s.392(4)

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

Compensation cap: s.392(5)

[94] 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 the high income threshold immediately prior to the dismissal.

[95] The amount the Applicant would have earned, or to which the Applicant was entitled, for the 26 week period immediately prior to the dismissal was $21,242.

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

Conclusion

[97] I am satisfied that:

a. the Applicant was protected from unfair dismissal;
b. the dismissal was unfair; and
c. it is appropriate to order that the Respondent pay the Applicant compensation in the amount of $7446.37, less applicable tax. This amount is to be paid within 14 days of the date of this decision.

[98] An order will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

W Smith (the Applicant)with M Morgan.

Hearing details:

2016.

Canberra:

June 21.

 1   Transcript PN16.

 2   Exhibit S1.

 3   Transcript PN23.

 4   Transcript PN25.

 5   Hospitality Industry (General) Award 2010.

 6 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

 7   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

 8   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 9   Ibid.

 10   Transcript PN49.

 11   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

 12   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 13   Previsic v Australian Quarantine Inspection Services Print Q3730.

 14 (2000) 98 IR 137.

 15   Ibid at 151.

 16   RMIT v Asher (2010) 194 IR 1, 14-15.

 17   Transcript PN50.

 18   Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.

 19   Biviano v Suji Kim Collection PR915963 at [34].

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