Yung-Hao (Chris) Lao v Keys and Remotes Pty Ltd

[2018] FWC 6573

[2018] FWC 6573

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yung-Hao (Chris) Lao
v
Keys and Remotes Pty Ltd
(U2018/7540)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 26 NOVEMBER 2018

Application for an unfair dismissal remedy – summary dismissal – whether applicant was dismissed – Small Business Fair Dismissal Code – valid reason – remedy appropriate – reinstatement inappropriate – compensation ordered.

[1] On 22 July 2018, Mr Yung-Hao (Chris) Lao made an application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. Mr Lao was employed by Keys and Remotes Pty Ltd (the respondent) as a full-time Bookkeeper until his summary dismissal on 2 July 2018. He claims that his dismissal was unfair and seeks an order for compensation.

[2] The respondent objects to the application on jurisdictional grounds, firstly that the applicant ‘terminated himself’ so there was no dismissal and alternatively, that the applicant was dismissed in accordance with the Small Business Fair Dismissal Code (the Code) and the Act. It was agreed that there were no other jurisdictional issues.

[3] Mr Lao was provided with a termination letter dated 2 July 2018 which states that he committed serious misconduct as there was ‘wilful or deliberate behaviour… that is inconsistent with the continuation of [his] contract of employment’ and he was ‘intoxicated at work, to the extent that [he was] so impaired that [he was] unfit to be entrusted with [his] employment duties.’ 1

[4] A hearing was held before me on 25 October 2018. Ms Amanda Both appeared on behalf of Mr Lao and I granted her permission to appear pursuant to s.596 of the Act to enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. Mr James Chiu-Ling Chen, co-director of Keys and Remotes Pty Ltd, appeared on behalf of the respondent. I decided to deal with the matter by way of determinative conference.

Legislation

[5] The dismissal of an employee will not be unfair if it was consistent with the Code (see s.385 of the Act). Section 388 of the Act provides:

‘388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.’

[6] It was agreed that the respondent was a ‘small business employer’ as defined in s.23 of the Act at the relevant time therefore the Code applies.

[7] The Code declared by the Minister pursuant to s.388(1) of the Act is in the following terms:

‘Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job.

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

The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.’

[8] Section 396 of the Act provides that the Fair Work Commission (the Commission) must determine the question of compliance with the Code before it considers the merits of the application. If the Commission finds that the respondent complied with the Code, the consequence is that the dismissal was not unfair, and the application will be dismissed.

[9] If the requirements of the Code are not met then s.387 of the Act must be considered. Section 387 provides:

‘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.’

Consideration

[10] The respondent submitted that there was no termination of employment. Alternatively, if there was, there were essentially five allegations made against Mr Lao. The first, which is dealt with in the letter of termination, is that Mr Lao entered the respondent’s payroll system and paid out all employees, which was labelled in the system as “termination”, and that he did this contrary to the instructions of Mr Chen’s wife, Ms Chi-Wen Tsai (Ting). Secondly, the respondent alleges that Mr Lao made inappropriate payments to himself. Thirdly, the respondent submits that Mr Lao used the respondent’s Harvey Norman vouchers but cannot provide proof of purchase to the amount of the vouchers. Fourthly, the respondent claims that Mr Lao took equipment (photo booth and camera kit) from the respondent without proper authorisation. A fifth allegation made in the letter of termination was that Mr Lao was ‘intoxicated’. The respondent explained that this meant intoxicated with power, not alcohol, 2 and appears to be a subset of the first allegation.

Was there a termination of employment?

[11] In Mohazab v Dick Smith Electronics (No 2), a Full Court of the Industrial Relations Court of Australia said:

‘In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.’ 3

[12] In Dover-Ray v Real Insurance Pty Ltd, 4a Full Bench of the Commission said:

‘[18] Section 643(1) of the WR Act confers a right on an employee whose employment has been terminated to apply to the AIRC for relief in respect of that termination but only if that employee’s employment “has been terminated by the employer”. It is well established that the Commission has no jurisdiction to deal with an application for relief against termination of employment unless such termination was at the initiative of the employer.’

[13] The respondent claims that there is no termination of employment because Mr Lao’s act of paying out and terminating all employees in the respondent’s payroll system constituted a termination of his own employment. Therefore, Mr Lao’s subsequent termination by the respondent is of no effect because Mr Lao’s employment had already ceased. The respondent submitted that Mr Lao ‘voluntarily abandoned his employment on 1 July 2018’ and he was only provided with a termination letter as he refused to leave even though he was no longer an employee of the respondent. 5

[14] Mr Lao said he was instructed by Mr David Quan (co-director of Keys and Remotes Pty Ltd) to ‘close the payroll and pay out all annual leave entitlements’ and he ‘did as he was instructed.’ 6 Was this a termination of employment?

[15] On the limited information before me, this appears to have been an administrative measure to ‘close out the payroll and pay out all entitlements, including annual leave, to all employees prior to the new financial year.’ 7 Mr Lao did not consider that this terminated employees and that he himself had been terminated. He said in his witness statement:

‘None of the employees were told they were terminated, because they were not terminated, they were just marked this way in the system.’ 8

[16] Further, there is no sign that Mr Quan made arrangements for all employees to be notified of this termination, or to leave the business, for example through a return of property. At most it was a first step in the termination of employment, to be followed up by measures which put that termination into effect, measures which appear not to have been taken.

[17] The fact that a computer payroll system requires a button labelled “termination” be hit in order to pay out entitlements is of limited evidentiary weight in the circumstances. In fact it appears only to have been a payout of entitlements. I find that there was a termination of employment when Mr Chen provided Mr Lao with the termination letter.

Were the requirements of the Small Business Fair Dismissal Code met?

[18] This is a summary dismissal, and therefore must meet the following requirements of the Code:

‘Summary dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.’

[19] In Harley v Rosecrest Asset Pty Ltd, 9 the Commission said:

‘[8] For an employer to believe on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal, it is firstly necessary for the employer to establish that the employer did in fact hold the belief that as a matter of fact that (i) the conduct was by the employee; (ii) the conduct was serious; and (iii) that the conduct justified immediate dismissal. This is to be contrasted to the provisions of s.387(a) where FWA, in determining whether there was a valid reason for the dismissal, must find whether the conduct in fact occurred.

[9] Secondly, it is necessary for the employer to establish that there are reasonable grounds for the employer holding the belief. It is thus necessary for the employer to establish a basis for the belief held which is reasonable. In this regard it would usually be necessary for the employer to establish what inquires or investigations were made to support a basis for holding the belief. It would also ordinarily be expected that the belief held be put to the employee, even though the grounds for holding it may not be. Failure to make sufficient inquiries or to put the accusation to the employee in many circumstances might lead to a view that there were no reasonable grounds for the belief to be held.’ [footnotes omitted]

[20] There seem to have been almost no inquiries made by Mr Chen on which he could find that there are ‘reasonable grounds’ within the Code. Nor did Mr Chen ‘put the accusation to the employee’. He appears to simply assert that the accusations he makes are true, and I am unable to find that there are any reasonable grounds for them.

[21] Mr Lao claimed that he paid out all entitlements at the direction of Mr Quan, a director of the respondent who holds 50 per cent of shares. He also claimed that Mr Quan directed him to do this on the morning of 29 June 2018, 10 and that he did this the same afternoon.11 He said that he received a telephone call from Ting, Mr Chen’s wife, at 6 pm who told him not to do this,12 but at that stage it had already been done. He also said that the action was reversible.13

[22] Mr Chen provided no evidence or reason to doubt this evidence. He largely accepted it. For example, Mr Chen said the following:

‘THE DEPUTY PRESIDENT: [Mr Lao] has to follow what the directors tell him.

MR CHEN: Yes.

THE DEPUTY PRESIDENT:  One of the directors comes to him and tells him to do this. He does it.

MR CHEN: Yes. Yes.

THE DEPUTY PRESIDENT:  What's wrong with that?

MR CHEN: There's nothing wrong with that.’ 14 [emphasis added]

[23] Given that Mr Lao was given a direction by a director to take the actions that he did, and Mr Chen agrees that ‘there’s nothing wrong with that’, a reasonable concession in the circumstances, this reason for termination does not meet the requirements of the Code for summary dismissal, nor is it a valid reason within s.387(a) of the Act. It is in the circumstances understandable that Mr Lao would follow the directions of a director of the respondent, in the absence of countervailing instructions. In fact, if he did not follow a direction, he might conceivably find himself open to action for refusing a reasonable and lawful direction.

[24] I note that Mr Chen conceded much of this, yet was unfortunately still prepared to press this as an allegation justifying termination.

[25] Secondly, Mr Chen provided evidence of two payments made by Mr Lao to himself. 15 Mr Lao explained that one was repayment of a parking fine he incurred. The other was repayment of a loan provided by Mr Lao to the respondent to enable him to receive wages in excess of what he would otherwise receive, for the purposes of getting credit with banks. Mr Lao said that Mr Quan authorised the first, and both directors authorised the second.16 Mr Chen did not challenge Mr Lao’s explanation for the payments but denied authorising it.17 Mr Chen conceded that he had ‘no evidence at all’ that Mr Quan did not authorise the first payment,18 and that ‘it’s possible’ that Mr Quan may have authorised the second.19

[26] It also appears to be a practice for one director to make decisions and give directions. For example, Mr Chen almost unilaterally terminated the employment of Mr Lao, a termination that Mr Quan appears not to agree with. Mr Chen said that he was not in a position to challenge the other parts of Mr Lao’s evidence. I accept Mr Lao’s evidence. I do not condone Mr Lao’s arrangement with the respondent to boost his apparent income. However, in those circumstances, the reason for termination does not meet the requirements of the Code for summary dismissal, nor is it a valid reason within s.387(a) of the Act.

[27] Thirdly, the respondent alleges in its written submissions, that Mr Lao went shopping with the respondent’s Harvey Norman electrical goods vouchers worth over $4000 and Mr Lao is unable to provide the respondent with proof of purchase to the amount of the vouchers. 20 Mr Chen states that ‘so far, [he] [has] seen three iPads’.21 Fourthly, the respondent also alleges that Mr Lao attempted to ‘steal photo equipment from the company’.22

[28] Mr Chen did not provide any evidence in relation to these allegations beyond his witness statement and Mr Lao did not address these allegations in the proceedings. On 31 October 2018, the Commission issued directions for further submissions from both parties on the two allegations of theft. Mr Chen filed further submissions on 1 November 2018. He provided three documents which purport to record payments, although it is unclear exactly what they are. They are of little or no assistance. He also provided a photograph of the photo equipment that was allegedly taken by Mr Lao without proper authorisation. This again is of little or no assistance.

[29] Mr Lao filed further submissions on 14 November 2018 in response, in which he provided a letter from Mr Quan dated 31 October 2018 stating that the Harvey Norman vouchers ‘[were] not used by Chris Lao’ and ‘the full amount was spent on goods for the sole benefit of Keys and Remotes Pty Ltd’ 23 and he had authorised Mr Lao to ‘pick up the equipment (photo booth and camera kit) on [his] behalf.’24

[30] Neither party asked for a further hearing, and were content to rely on these submissions and documents.

[31] The evidence provided by Mr Chen in support of his allegations is limited, and the allegations are denied by Mr Lao. Further, Mr Lao has once again provided an explanation for the payments which is credible, and apparently supported by Mr Quan. Mr Chen’s earlier allegations were also denied and a credible explanation provided. In fact Mr Chen accepted to some or a large extent that the allegations regarding the payout of entitlements lacked substance, yet he continued to press them.

[32] Overall there is not enough material before me on which I can be satisfied that Mr Chen has made out these further allegations, even to the lesser standard required in the Code. I found Mr Lao to be a convincing witness, while Mr Chen pursued allegations which he admitted had little substance in that he said ‘[there's] nothing wrong with that.’ 25

[33] I prefer the evidence of Mr Lao. I find that these allegations are not substantiated and do not constitute ‘reasonable grounds’ for summary dismissal in the Code, and are not valid reasons for termination within s.387(a) of the Act.

[34] In relation to the respondent’s fifth allegation, it is unclear on its face how it relates to a valid reason. In any event, this issue is dealt with above in my consideration of the direction given to Mr Lao by Mr Quan to pay out entitlements as Mr Chen agreed that this allegation is a subset of his first allegation. 26 In my view, there are no grounds for claiming that Mr Lao was in any way ‘intoxicated’, even in the sense used by Mr Chen.

[35] I conclude that the requirements of the Code are not met. I now move to consider s.387 of the Act.

Section 387 of the Act

Section 387(a) – Valid reason

[36] There is no valid reason for termination for the reasons set out above.

Section 387(b) – Notification

[37] It was agreed that Mr Lao was notified of the reason for termination at the meeting on 2 July 2018. 27 However, there was no valid reason to notify.

Section 387(c) – Opportunity to respond

[38] The respondent claims that he gave Mr Lao an opportunity to respond on 2 July 2018, 28 while Mr Lao denies this.29 Mr Lao accepts that Mr Chen sent him a text message on 1 July 2018 asking him for an explanation.30 I accept Mr Chen’s evidence and find that Mr Lao was given an opportunity respond.

Section 387(d) – Support person

[39] It is agreed that Mr Lao did not ask for a support person. 31

Section 387(e) – Unsatisfactory performance

[40] It is agreed that this is not relevant. 32

Section 387(f), (g) – Size of enterprise and human resource expertise

[41] It is agreed that this is a small business without human resource professionals. I am satisfied that the absence of dedicated human resource management specialists or expertise impacted on the procedures followed in effecting the dismissal. However, Mr Lao said that Mr Chen was advised by Mr Quan not to terminate without some form of procedural fairness. 33 There is some difference between Mr Lao and Mr Chen as to the degree of warning given by Mr Quan34 but I find that the warning is a relevant factor in my consideration of s.387(g).

Section 387(h) – Other

[42] Mr Lao raised a number of issues including; that the termination letter was prepared prior to termination, that it was handed to him on 3 July 2018 when he came back for his belongings, that an unpleasant message was sent advising him not to access company computers etc., that he had some two and a half years of service, and that he found it difficult to find a new job, and was so far unsuccessful in his job search activities. However, since Mr Chen gave Mr Lao the letter of termination on 3 July 2018 and not at the 2 July 2018 meeting, this suggests some consideration of issues by Mr Chen. It is also appropriate to advise someone not to access company property when they are no longer in the company’s employ. I take into account the other factors.

Conclusion

[43] I have taken into account all factors, including that it was a summary dismissal. I find that the termination was harsh, unjust or unreasonable and therefore unfair.

Remedy – Compensation

[44] Under s.390(3) of the Act, I must not order the payment of compensation unless firstly, I am satisfied that reinstatement is inappropriate and secondly, I consider an order for payment of compensation is appropriate in all the circumstances.

[45] Taking into account my earlier findings and the fact that Mr Lao has sought compensation and not reinstatement, I consider that an order for compensation is appropriate.

[46] If compensation is awarded, the requirements of s.392 of the Act must be met:

‘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.

(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.’

[47] In Haigh v Bradken Resources Pty Ltd, 35 a Full Bench of the Commission said in relation to compensation:

‘[10] The frequently quoted case on compensation calculations is Sprigg v Paul Licensed Festival Supermarket in which a Full Bench of the Australian Industrial Relations Commission (AIRC) confirmed the following steps in determining compensation under the unfair dismissal provisions of the Workplace Relations Act:

“1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated,

2. Deduct monies earned since termination,

3. Deductions for contingencies,

4. Calculate any impact of taxation,

5. Apply the legislative cap.”

[11] The legislation has been amended since that time by permitting a reduction in an amount otherwise payable if an employee’s misconduct contributed to the employers decision to dismiss. The Full Bench decision in Sprigg has also been the subject of comment by other Full benches. In Smith v Moore Paragon a Full Bench of the AIRC said:

“COMMENT IN RELATION TO THE GUIDELINES IN SPRIGG

[32] It seems to us that the amounts arrived at by the application of the guidelines in Sprigg in the present matter are on their face manifestly inadequate for employees with the length of service of the Appellants, the circumstances of their dismissal and their poor prospects for future employment. This causes us to sound a warning in relation to the application of Sprigg. The guidelines laid down in Sprigg and refined in Ellawala v Australian Postal Commission are clearly designed to serve the proper and desirable purpose of fostering uniformity and consistency in decision-making by individual members of the Commission when assessing compensation pursuant to s.170CH(6). However, those guidelines are not a substitute for the words of the Act. By virtue of s.170CH(2), any remedy ordered by the Commission must be a remedy that the Commission considers "appropriate" having regard to all the circumstances of the case including the matters set out in s.170CH(2). Section 170CH(6) confers a general discretion "if the Commission considers it appropriate in all the circumstances of the case" to "make an order requiring the employer to pay the employee an amount ordered by Commission in lieu of reinstatement" subject to the Commission having regard "to all the circumstances of the case including" the matters listed in s.170CH(7) - the same list of matters set out in s.170CH(2) - and subject also to the `cap' provided for in s.170CH(8) and (9). If an application of the guidelines in Sprigg yields an amount which appears either clearly excessive or clearly inadequate, then the member should reassess any assumptions or intermediate conclusions made or reached in applying the guidelines so as to ensure that the level of compensation is in an amount that the member considers appropriate having regard "to all the circumstances of the case" including the matters listed in s.170CH(7) and subject to the `cap' provided for in s.170CH(8) and (9). In this context it should be borne in mind that the result yielded by an application of the Sprigg guidelines may vary greatly depending upon particular findings in relation to the various steps including, in particular, step one, which necessarily involves assessments as to future events that will often be problematic.”’ [footnotes omitted]

Consideration

Section 392 of the Act

Section 392(2)(a) – Effect on the viability of the enterprise

[48] The respondent conceded 36 and I so find that an order of 12 weeks’ pay, the amount sought by Mr Lao, would not affect the viability of the enterprise.

Section 392(2)(b) – Length of service

[49] I have taken into account Mr Lao’s length of service with the respondent.

Section 392(2)(c) – Remuneration if not dismissed

[50] I find that Mr Lao would have remained employed by the respondent for a period of at least 12 months, a period which was agreed to by Mr Chen. 37

Section 392(2)(d) – Mitigation efforts

[51] I find that Mr Lao has actively sought employment, applying for 40 jobs, 38 and the respondent did not contest this.39

Section 392(2)(e) – Remuneration earned during period between dismissal and order

[52] I find that Mr Lao would not have earned any remuneration from employment or other work since his dismissal and the respondent did not contest this. 40

Section 392(2)(f) – Remuneration reasonably likely to be earned during period between order and actual compensation

[53] I find that Mr Lao is not reasonably likely to earn any income during the period between the making of the order for compensation and the actual compensation.

Section 392(2)(g) – Other

[54] I have taken into account all matters raised by the parties, including the amount sought by Mr Lao as compensation.

Section 392(3) – Misconduct

[55] In the circumstances I will not make any deductions for misconduct, given my earlier findings.

The guidelines in Sprigg

[56] In relation to the guidelines set out in Sprigg, having regard to my earlier determinations, I find as follows:

[57] ‘1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated’ – In this case, Mr Lao would have earned a further twelve months’ pay.

[58] ‘2. Deduct monies earned since termination’ – Mr Lao has not earned any money since termination.

[59] ‘3. Deductions for contingencies’ – Given the limited amount of compensation sought by Mr Lao, I will not make any deductions for contingencies.

[60] ‘4. Calculate any impact of taxation’ – The amount of compensation I propose to order will be taxed according to law.

[61] ‘5. Apply the legislative cap’ – The amount of compensation I propose to order will not exceed the compensation cap in s.392(5) of the Act so deductions need not be made.

Conclusion

[62] I am satisfied in the circumstances that a remedy is appropriate and that reinstatement is inappropriate. In this case, Mr Lao seeks 12 weeks’ pay. Having regard to all the circumstances and consistent with Haigh, I have decided to make an order of that amount plus 9.5 per cent superannuation with deduction of any taxation required by law. I will not make an order in excess of what Mr Lao seeks.

[63] Mr Lao and the respondent are directed to calculate the total of 12 weeks’ pay and advise the Commission of the calculation within one week of the date of this decision.

[64] The respondent is directed to pay Mr Lao the amount agreed within three weeks of the date of this decision.

[65] If Mr Lao and the respondent cannot reach agreement on the amount of 12 weeks’ pay, the respondent is directed to provide the Commission with the eight payslips that Mr Lao received immediately prior to his dismissal in order for the Commission to determine the total amount of compensation payable. Mr Lao will have one week to respond to the payslips provided by the respondent if he wishes to do so. An order will be made on the basis of those payslips and any response provided by Mr Lao.

DEPUTY PRESIDENT

Appearances:

A Booth for the applicant.

J Chen for the respondent.

Hearing details:

2018.

Melbourne:

October 25.

Printed by authority of the Commonwealth Government Printer

<PR701726>

 1   Exhibit C3, Termination Letter, 2 July 2018.

 2   Transcript PN51-58.

 3 (1995) 62 IR 200, 205-206.

 4   [2010] FWAFB 2670.

 5   Exhibit C2.

 6   Exhibit L4, 6.

 7   Exhibit L3, 4.

 8   Ibid.

 9   [2011] FWA 3922.

 10   Transcript PN227-236.

 11   Transcript PN260-264.

 12   Transcript PN290-291.

 13   Exhibit L3 and Transcript PN264.

 14   Transcript PN331-336.

 15   Exhibit C3.

 16   Transcript PN412-470.

 17   Transcript PN471-502.

 18   Transcript PN476.

 19   Transcript PN501-502.

 20   Respondent’s Outline of Argument: Objections, 4.

 21   Ibid.

 22   Exhibit C2.

 23   Applicant’s Submissions filed on 14 November 2018, Letter from Mr David Quan dated 31 October 2018.

 24   Ibid.

 25   Transcript PN336.

 26   Transcript PN51-58.

 27   Transcript PN523.

 28   Transcript PN556-569.

 29   Transcript PN570-571.

 30   Exhibit L3, 4 and Transcript PN686-721.

 31   Transcript PN578-579.

 32   Transcript PN580-583.

 33   Transcript PN584-606.

 34   Transcript PN594-630.

 35   [2014] FWCFB 236.

 36   Transcript PN933-936.

 37   Transcript PN939-945.

 38   Transcript PN903-908.

 39   Transcript PN949-952.

 40   Transcript PN953-958.