Wilson Fernando Rosas Horta v 51st George Pty Ltd as Trustee for 51st George Unit Trust T/A 51st Street George
[2022] FWC 1920
•21 JULY 2022
| [2022] FWC 1920 [Note: a correction has been issued to this document] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Wilson Fernando Rosas Horta
v
51st George Pty Ltd As Trustee For 51st George Unit Trust T/A 51st Street George
(U2022/1153)
| DEPUTY PRESIDENT MOLTONI | BRISBANE, 21 JULY 2022 |
Application for relief from unfair dismissal – no genuine redundancy – termination at the initiative of the employer - no valid reason – compensation ordered.
On 26th January 2022, Mr Wilson Fernando Rosas Horta (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with 51st George Pty Ltd As Trustee for 51st George Unit Trust T/A 51st Street George (Respondent). The Applicant seeks compensation as a remedy.
When can the Commission order a remedy for unfair dismissal?
Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:
(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.
When has a person been unfairly dismissed?
Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.
Background
The background to the matter, uncontested at hearing, is set out in the following paragraphs.
The Applicant commenced working for the Respondent on 26 February 2017 as the Head Chef of the Respondent’s restaurant known as “51st Street” and he continued working for the Respondent in this position for four years and 10 months.
The Applicant took leave during the restaurant’s temporary cease of trade period over the Christmas and New Year period, as was usual during that time of year, and was due to commence back at work on 4 January 2022 when the restaurant was scheduled to reopen.
On 2 January 2022, the Respondent informed the Applicant by phone that “51st Street” would not be reopening.
The Form F3 filed by the Respondent on 29 March 2022, provides that “the company was unable to renew its lease due to the unsustainable business downturn in the Brisbane CBD due to COVID.” This information was unable to be tested, for reasons set out later in this decision.
It is unclear of the date however between 2 January 2022 and 11 January 2022, the Respondent advised the Applicant that they were a small business, and the Applicant was not entitled to a redundancy payment.
On 11 January 2022, the Respondent wrote to the Applicant by email advising of the termination and apologising for it. Also in that correspondence, the Respondent expressed that they had sought advice regarding the Applicant’s redundancy entitlements and that their accountants had confirmed that they in fact do not meet the definition of a small business due to employees engaged in an associated entity which meant that the Applicant was therefore eligible for redundancy. The Respondent further expressed in this correspondence that 51st Street did not have sufficient funds to pay the Applicant his redundancy directly and it would need to be addressed by the liquidators. The Respondent informed the Applicant that they would pass on all the relevant details to the liquidators who would wind up the business in the correct manner, including settlement of creditors of which the Applicant would be one. The Respondent also included a link to the Fair Entitlements Guarantee (FEG) scheme and advised the Applicant that they were confident that he would be appropriately supported with his redundancy and leave entitlements through that scheme.
In response, the Applicant requested the contact details for the liquidators, and he was advised by the Respondent that they would contact him when they were appointed.
In respect of the redundancy, there is no evidence of any consultation.
In the Form F3, the Respondent made a jurisdictional objection that the Applicant was not dismissed. The Respondent claims it offered the Applicant an alternative role at a café called “Master Toms” and that the Applicant refused that role. Therefore, the Respondent formed the view that the Applicant had resigned. This information was unable to be tested for the reasons set out later in this decision.
The Applicant submitted that he had worked at “Master Toms” previously and expressed concerns about the filtration and exhaust system in the kitchen as he had experienced health issues such as a sore throat and sinus issues which resolved when he stopped working there.
On that basis, the Respondent’s contention is that the Applicant refused the redeployment opportunity.
On the 9 June 2022, a Case Management Conference was held and the Respondent failed to attend despite being advised via the nominated email address provided in the Respondent’s Form F3.
Directions were subsequently issued by my Chambers requiring the filing of material. The Applicant complied with those directions and the Respondent did not.
Further directions were issued by my Chambers on 11 July 2022. Again, the Applicant complied with those directions and the Respondent did not.
The Applicant filed submissions in the Commission on 3 July 2022 and 12 July 2022.
A further Case Management Conference was convened on 12 July 2022 to provide the Respondent a further opportunity to explain its failure to file material and evidence as directed. The Applicant attended and, again, the Respondent did not.
All communications with the Respondent were sent to the Respondent’s nominated email address provided in the Form F3, as well as an alternative email address for the Respondent from which the Respondent had sent correspondence to the Commission previously. Attempts to contact the Respondent by telephone were made to the nominated phone number provided in the Respondent’s Form F3, as well as to the alternative phone number provided for the conciliation.
Following repeated failures by the Respondent to comply with the directions, the parties were advised on 9 June 2022 as follows:
“The Deputy President again puts the Respondent on notice that should you not submit material in accordance with the directions, the matter will be decided in the absence of material from you.”
Given that there were contested facts as a result of the Respondent’s Form F3, the Commission was obligated to hold a hearing to determine the matter. Initially that hearing was scheduled for 3 August 2022, but it was subsequently brought forward due to the Respondent’s non-compliance with the directions and the reply direction being vacated.
In directions from my Chambers, on 15 July 2022, the parties were advised:
“The Deputy President considers it appropriate to list the matter for determinative conference/hearing at 2pm on Tuesday, 19 July 2022, in the interests of resolving the matter more efficiently.
A notice of listing has been issued to the parties reflecting this.
The Deputy President notifies the Respondent that their failure to attend the hearing on Tuesday 19 July may result in a decision being made in their absence.”
Following the seeking of views from the parties in attendance, a determinative conference was held on 19 July 2022. The Respondent failed to attend and accordingly, their contentions as raised in the Form F3 were unable to be tested. The Applicant gave evidence on his own behalf which was in keeping with his filed submissions.
Has the Applicant been dismissed?
A threshold issue to determine is whether the Applicant has been dismissed from their employment.
Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.
The Respondent submitted in the Form F3 response that the Applicant failed to accept the offer of alternate employment at Master Toms Café, however there was no evidence before the Commission to support this contention.
The Applicant gave evidence in the hearing that he raised safety concerns about the position at the Master Toms Café and that these were not dealt with in any way by the Respondent. The Applicant also gave evidence that they at no time resigned from their position with the Respondent.
In all the circumstances I find that the Applicant’s employment with the Respondent was terminated at the initiative of the Respondent.
I am therefore satisfied that the Applicant has been dismissed within the meaning of s.385 of the FW Act.
Initial matters
Under section 396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
Section 394(2) requires an application to be made within 21 days after the dismissal took effect.
The parties submitted that a phone call occurred on 2 January to advise the Applicant that the “51st Street” restaurant would not reopen. The Applicant was sent an email from the Respondent on 11 January 2022 stating amongst other things, that the Applicant’s employment had ended. A copy of this was provided in evidence and was not contested.
I find that the Applicant was dismissed from his employment when he received the email from his employer on 11 January 2022. The Applicant made the application on 26 January 2022. I am therefore satisfied that the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
I have set out above when a person is protected from unfair dismissal.
Minimum employment period
It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.
It was not in dispute and I find that the Applicant was an employee, who commenced their employment with the Respondent on 26 February 2017 and was dismissed on 11 January 2022, a period in excess of 6 months.
I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.
Modern award coverage
It was not in dispute and I find that, at the time of dismissal, the Applicant was covered by an award, being the Hospitality Industry (General) Award 2020.
I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.
Was the dismissal a case of genuine redundancy?
Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy[1].
It was not in dispute and I find that whilst the Applicant’s dismissal may have been due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise it is uncontested that the Respondent failed to consult with the Applicant about the redundancy.[2]
I am therefore satisfied that the dismissal was not a case of genuine redundancy.
Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.
I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[3]
I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct?
In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”[4] and should not be “capricious, fanciful, spiteful or prejudiced.”[5] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[6]
The Applicant submitted that there was no valid reason for the dismissal related to the Applicant’s capacity or conduct because he was ready willing and able to perform his role and, in the hearing, he gave evidence that he had an exemplary employment history with the Respondent. It was uncontested that no performance issues were ever raised with him and indeed that he had been given a pay increase for his “epic performance” just 2 months prior to the termination.
In its Form F3 response, the Respondent submitted that the Applicant refused to perform a role in an alternative location which the Applicant believed to be unsafe. The Applicant confirmed this in the hearing however the safety concern raised could have easily been addressed by the Respondent. Disappointingly, there was no evidence before the Commission that the Respondent had even acknowledged those concerns let alone take any steps to investigate or address them.
In all the circumstances, I find that there was no valid reason related to the Applicant’s capacity or conduct to perform the role he was employed to perform.
Was the Applicant notified of the valid reason?
Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[7]
As I am not satisfied that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[8]
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
As I have not found that there was a valid reason related to dismissal, this factor is not relevant to the present circumstances.[9]
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person:
“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”[10]
It is uncontested and I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.
Was the Applicant warned about unsatisfactory performance before the dismissal?
As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
The absence of dedicated human resource management specialists does not relieve an employer of extending an appropriate degree of courtesy to its employees “even when implementing something as difficult and unpleasant as the termination of a person’s employment.”[11]
The Applicant gave evidence in the hearing, supported by an email from the Respondent dated 11 January 2022, that the Respondent had sought advice from his accountant about the Respondent not failing within the definition of a small business under the Act. It appears the Respondent was capable of seeking advice in regard to its obligations although I have attributed no weight to this factor given the Respondents obligations to the Applicant in any event.[12]
What other matters are relevant?
Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
An employee’s long and satisfactory work performance or history may be taken into consideration under s.387(h) of the FW Act and, depending on all the circumstances, may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable.[13] It was uncontested that the Applicant had been employed by the Respondent for a period close to 5 years. I accept this is a reasonably lengthy period of good service with a positive history of satisfactory performance.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?
I have made findings in relation to each matter specified in section 387 as relevant.
I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[14] Each assessment must be made on its merits. That assessment is to be based upon the ordinary meaning of the words in the Act, in their statutory context. Context includes the object stated in s.381(2) of the Act that reads:
“…the manner of deciding on and working out such remedies are intended to ensure that a “fair go all round” is accorded to both the employer and the employee concerned.”
In arriving at an overall assessment, the statutory considerations must be applied in a practical, common-sense way to ensure that the employer and the employee are each treated fairly.[15]
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh, unjust, and unreasonable because there was no valid reason for the dismissal. As such it follows that the Applicant was not notified of any such reasons (s 387(b)), nor was he afforded an opportunity to respond to any reason for the dismissal in relation to his capacity or conduct (s 387(c)) and there were no discussions relating to the dismissal (s 387(d)). For completeness, I found no weight in relation to the remaining factors s 387(e) through (g).
Conclusion
I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
Remedy
Being satisfied that the Applicant:
· made an application for an order granting a remedy under section 394;
· was a person protected from unfair dismissal; and
· was unfairly dismissed within the meaning of section 385 of the FW Act,
I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.
Under section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:
(a) I am satisfied that reinstatement of the Applicant is inappropriate; and
(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.
Is reinstatement of the Applicant inappropriate?
The Applicant submitted that reinstatement is not appropriate because the relationship has broken down and the Applicant has found alternate employment.
Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.
Is an order for payment of compensation appropriate in all the circumstances of the case?
Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…”[16]
Where an applicant has suffered financial loss as a result of the dismissal, this may be a relevant consideration in the exercise of this discretion.[17]
The Applicant submitted that payment of compensation is appropriate and gave evidence that:
· the Applicant was unemployed and unpaid for a period of 4 weeks before being able to find alternative employment which he commenced on 31 January 2022; and
· the Applicant was not paid any notice.
In all the circumstances, I consider that an order for payment of compensation is appropriate because the Applicant was either unpaid and/or unemployed from the 3rd of January 2022 to 31 January 2022 as a result of the dismissal. The Applicant was also not paid notice.
Compensation – what must be taken into account in determining an amount?
Section 392(2) of the FW Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation to the Applicant in lieu of reinstatement including:
(a) the effect of the order on the viability of the Respondent’s enterprise;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation;
(f) the amount of any income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the Commission considers relevant.
I consider all the circumstances of the case below.
Effect of the order on the viability of the Respondent’s enterprise
There is no evidence before the Commission to suggest otherwise and I am therefore satisfied that an order for compensation would not have an effect on the viability of the employer’s enterprise.
Length of the Applicant’s service
The Applicant’s length of service was 4 years and 10 months.
The Applicant submitted that consideration of the Applicant’s length of service would favour the determination of a greater amount of compensation because the Applicant had an expectation of ongoing work and had an exemplary record of service over this time.
I consider that the Applicant’s length of service warrants increasing the amount of compensation ordered albeit slightly.
Remuneration that the Applicant would have received, or would have been likely to receive, if the Applicant had not been dismissed
As stated by a majority of the Full Court of the Federal Court, “[i]n determining the remuneration that the Applicant would have received, or would have been likely to receive… the Commission must address itself to the question whether, if the actual termination had not occurred, the employment would have been likely to continue, or would have been terminated at some time by another means. It is necessary for the Commission to make a finding of fact as to the likelihood of a further termination, in order to be able to assess the amount of remuneration the employee would have received, or would have been likely to receive, if there had not been the actual termination.”[18]
When calculating the remuneration that the Applicant would have received or would have been likely to receive, if the Applicant had not been dismissed, the intention is to put the Applicant in the financial position he or she would have been in but for the unfair dismissal. Where the Commission forms the view that the Applicant would have stayed in his or her former job for a number of years, the remuneration may include long service leave and potential bonuses.[19]
The Applicant submitted that the Applicant’s employment would have been likely to continue for a further period of 10 years and the amount of remuneration that the Applicant would have received or would have been likely to receive during that period is $70,000 plus superannuation of 10% until 1 July 2022 then 10.5% from 1 July 2022 onwards.
The evidence before the Commission, as a result of the Respondent’s Form F3 and confirmed in hearing by the Applicant, is that the Applicant earned a salary of $70,000 per annum plus superannuation.
I find that the period the Applicant’s employment was likely to continue but for the dismissal was approximately 16 weeks and that during that period he would have received $1,346.15 per week, or $21,538.40.
Efforts of the Applicant to mitigate the loss suffered by the Applicant because of the dismissal
The Applicant must provide evidence that they have taken reasonable steps to minimise the impact of the dismissal.[20] What is reasonable depends on the circumstances of the case.[21]
Whether the Applicant has acted reasonably to mitigate their loss will depend on all the circumstances. Matters that the Australian Industrial Relations Commission has taken into account in considering the efforts of a person to mitigate their loss include:
· establishment of a venture on the applicant’s own account;
· the status of the applicant as a single parent;
· the undertaking of training courses to enhance employment prospects; and
· the reasonableness of an applicant to refuse re-employment in circumstances where the employment relationship had broken down.[22]
The Applicant submitted that he had taken all appropriate steps to mitigate his loss and in the hearing provided evidence in respect of applying for 8 positions, attending interviews, and successfully attained a new role which commenced on 31 January 2022.
I am satisfied that the Applicant took reasonable steps to mitigate his loss and was successful in doing so.
Amount of remuneration earned by the Applicant from employment or other work during the period between the dismissal and the making of the order for compensation
The Applicant’s evidence is that he earned 8 weeks’ pay during the relevant 16 week period, an amount of $10,769.23, from employment or other work since the dismissal.
That evidence is not challenged by the Respondent.
I am satisfied that the amount of remuneration earned by the Applicant from employment or other work during the period since the dismissal is $10,769.23.
Amount of income reasonably likely to be so earned by the Applicant during the period between the making of the order for compensation and the actual compensation
I have found earlier that, had the Applicant not been dismissed, he would have been employed for a further 16 weeks and that it has been more than 16 weeks between the time the Applicant has been dismissed and the making of the order for compensation therefore there is no basis for deducting any payment for compensation earned by the Applicant after that time.
That evidence is not challenged by the Respondent.
Compensation – how is the amount to be calculated?
As noted by the Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act… is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).[23] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[24].”[25]
The approach in Sprigg is as follows:
Step 1:
I have estimated the remuneration the Applicant would have received, or would have been likely to have received if the Respondent had not terminated the employment, to be $21,538.40 on the basis of my finding that the Applicant would likely have remained in employment for a further period of sixteen weeks. This estimate of how long the Applicant would have remained in employment is the “anticipated period of employment”[26]
Step 2:
Only monies earned since termination for the anticipated period of employment are to be deducted.[27] I have noted earlier that the applicant earned $10,769.23 for a period of 8 weeks of other employment and this amount should be deducted from the amount of $21,538.40. This leaves $10,769.17 in compensation.
Step 3:
I now need to consider the impact of contingencies on the amounts likely to be earned by the Applicant for the remainder of the anticipated period of employment.[28]
It is only necessary to consider the impact of contingencies on prospective losses, namely losses occurring after the date of the hearing. At the time of hearing, it is possible to make a finding as to whether the Applicant’s earning capacity has been affected since the date of dismissal to that time.[29]
Given the period I have anticipated that the Applicant would remained employed, being eight weeks, extended only to the date of hearing, there is no basis to make a deduction for contingencies.
Step 4:
I have considered the impact of taxation but have elected to settle a gross amount of $7,538.48 and leave taxation for determination.
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”.[30]
I am satisfied that the amount of compensation that I have determined above takes into account all the circumstances of the case as required by s.392(2) of the FW Act.
Compensation – is the amount to be reduced on account of misconduct?
If I am satisfied that misconduct of the Applicant contributed to the employer’s decision to dismiss, I am obliged by section 392(3) of the FW Act to reduce the amount I would otherwise order by an appropriate amount on account of the misconduct.
I am satisfied that no misconduct of the Applicant contributed to the employer’s decision to dismiss. Therefore, the amount of the order for compensation is not to be reduced on account of misconduct.
Compensation Cap – s 392(5) and (6)
The amount of compensation I have calculated will not make it necessary to apply the cap provided for in s.392(5) of the FW Act.
Instalments – s.393
I do not consider that there is any reason for compensation to be made by way of instalments.
Conclusion
I am satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair, and that order for compensation equating $10,769.17 plus superannuation, less taxation to be deducted as required by law, is appropriate having regard to all the circumstances of the case.
An order requiring the payment of this amount within 14 days will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Wilson Fernando Rosas Horta, Applicant
Hearing details:
2022
Brisbane (by telephone)
July 19.
[1] Explanatory Memorandum to Fair Work Bill 2008 at [1550].
[2] See for example UES (Int’l) Pty Ltd v Harvey [2012] FWAFB 5241 (Acton SDP, Kaufman SDP, Bissett C, 14 August 2012), [(2012) 215 IR 263].
[3] Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].
[4] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
[5] Ibid.
[6] Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
[7] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[8] Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000), [41]; Read v Cordon Square Child Care Centre [2013] FWCFB 762, [46]-[49].
[9]Ibid.
[10] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
[11] Sykes v Heatly Pty Ltd t/a Heatly Sports PR914149 (AIRC, Grainger C, 6 February 2002), [21].
[12] Ibid.
[13] Telstra Corporation v Streeter [2008] AIRCFB 15, [27].
[14] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].
[15] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (as cited in Potter v WorkCover Corporation (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C, and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C, at [36]).
[16] Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter[2014] FWCFB 7198, [9].
[17] Vennix v Mayfield Childcare Ltd [2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171, [5]-[7].
[18] He v Lewin [2004] FCAFC 161, [58].
[19] Shorten v Australian Meat Holdings Pty Ltd (1996) 70 IR 360, citing Slifka v J.W. Sanders Pty Ltd (1996) 67 IR 316, 327.
[20] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Lockwood Security Products Pty Ltd v Sulocki and Ors PR908053 (AIRCFB, Giudice J, Lacy SDP, Blair C, 23 August 2001), [45].
[21] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [34] citing Payzu Ltd v Saunders [1919] 2 KB 581.
[22] Biviano v Suji Kim Collection PR915963 (AIRCFB, Ross VP, O’Callaghan SDP, Foggo C, 28 March 2002), [54].
[23] (1998) 88 IR 21.
[24] [2013] FWCFB 431.
[25] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [16].
[26] Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000), [34].
[27] Ibid.
[28] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001), [39].
[29] McCulloch v Calvary Health Care Adelaide [2015] FWCFB, [21], citing Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000).
[30] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries[2016] FWCFB 7206, [17].
Printed by authority of the Commonwealth Government Printer
<PR744022>
0
15
0