1
[2013] FWC 2224
DECISION
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Eduard Anneveldt
v
Heran Building Group Pty Ltd
(U2012/14491)
COMMISSIONER CAMBRIDGE SYDNEY, 18 APRIL 2013
Unfair dismissal - alleged poor performance - no evidence from decision maker - inadequate
evidentiary basis upon which to establish valid reason for dismissal - significant procedural
deficiencies - denial of natural justice - harsh, unjust and unreasonable dismissal –
compensation ordered.
[1] This matter involves an application for unfair dismissal remedy made pursuant to
section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Brisbane on
24 October 2012. The application was made by Eduard Anneveldt (the applicant) and the
respondent employer is Heran Building Group Pty Ltd (the employer).
[2] The application indicated that the date that the applicant’s dismissal took effect was 10
October 2012. Consequently the application was made within the 14 day time limit prescribed
by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation and it has proceeded to arbitration before
the Fair Work Commission (the Commission) in a Hearing conducted in Brisbane on 11 and
12 March 2013.
[4] At the Hearing, Mr A Fitzsimons, a barrister, appeared for the applicant. The applicant
and one other witness were called to provide evidence in support of the claim. The employer
was represented by Ms K Garner, a barrister, who called a total of four witnesses who
provided evidence on behalf of the employer.
Factual Background
[5] The applicant had performed work for the employer as a contractor since about July
1988 and he became a direct employee of the employer in May 2007. Consequently the
applicant’s period of service as an employee was about 5 years and 4 months. The applicant
was engaged as a Construction Site Supervisor.
[6] The employer is a medium sized family business employing approximately 40 people.
The employer operates a residential building/development Company based in South East
Queensland. The employer is primarily controlled and managed by three brothers, Brian,
AUSTRALIA FAIR WORK COMMISSION
[2013] FWC 2224
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Martin and Stephen Heran, who are Directors of the employer Company. A fourth brother,
Glenn and a Shane Heran also have senior managerial roles in the employer’s business.
[7] In June 2011, the employer advised the applicant that his employment was terminated
because of “... downturn in our business activity,...”1. The applicant was given telephone and
e-mail advice of the termination of employment from Mr Stuart Knock, the employer’s
Accountant. The termination advice provided four weeks’ notice which meant that the
applicant was to work until 20 July 2011. However, during this period of notice the employer
reversed the decision to dismiss the applicant and he continued in employment up until 5
September 2012.
[8] On 5 September 2012, the applicant received telephone and e-mail advice from Mr
Knock which provided five weeks notice of termination of employment. These
communications from Mr Knock advised the applicant that he was dismissed on the basis of
unsatisfactory performance and the e-mail included ten “reasons” which related to the
unsatisfactory performance.
[9] The applicant worked in his role as Supervisor during the notice period which
concluded on 10 October 2012 when his employment came to an end.
The Case for the Applicant
[10] Mr Fitzsimons, who appeared for the applicant, made verbal submissions in addition
to documentary material which had been filed earlier. Mr Fitzsimons submitted that the initial
matters arising from s.396 of the Act had been satisfied. Mr Fitzsimons said that the
application had been made in time and the applicant was a person protected from unfair
dismissal. Further, Mr Fitzsimons said that the Small Business Fair Dismissal Code did not
apply nor was the matter a case of genuine redundancy.
[11] Mr Fitzsimons submitted that the matter was based around subsection 385 (b) of the
Act, regarding whether the dismissal of the applicant was harsh, unjust or unreasonable.
Consequently, according to Mr Fitzsimons, the determination of the case involved an
assessment of the factors set out in s.387 of the Act.
[12] Mr Fitzsimons urged the Commission to accept the evidence of the applicant,
particularly in respect to the alleged absence of any warning about the performance reasons
which were contained in the letter of dismissal of 5 September 2012. Mr Fitzsimons criticized
what he said was the lack of specificity arising from the employer’s evidence about any verbal
warning that may have been given to the applicant. He said that there was no evidence of any
written warning and the evidence of verbal warnings amounted to no more than vague,
generalised criticism. Mr Fitzsimons submitted that the employer’s evidence of prior warning
was unable to satisfy the notion of a warning but instead represented a general unhappiness.
[13] According to Mr Fitzsimons, the absence of specific warning and the generalised
nature of complaint made against the applicant established that there was not a valid reason
for the dismissal.
[14] Mr Fitzsimons further submitted that the Commission should, in accordance with the
principle recognised in the case of Jones v Dunkel,2 draw an adverse inference from the
absence of any evidence from, in particular, Mr Brian Heran. Mr Fitzsimons said that Brian
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Heran had directed the termination of the applicant’s employment and he had not been called
to give evidence and there was no satisfactory explanation for his absence.
[15] According to Mr Fitzsimons, Brian Heran was the controlling mind behind the
termination and his absence and that of Stephen Heran, the manager most directly involved
with the work of the applicant, should lead the Commission to draw an inference that these
individuals were not called as witnesses because their evidence would have been deleterious
to the employer’s case. According to the submissions made by Mr Fitzsimons, the absence of
any evidence from Brian and Stephen Heran should assist to support the evidence of the
applicant.
[16] Mr Fitzsimons made further submissions which examined each of the ten points
contained in the letter of dismissal. Mr Fitzsimons submitted that upon analysis, each of the
ten points which were relied upon as reasons for dismissal were either so generalised so as to
be unfounded, or unable to be supported by the evidence as factually accurate. Therefore,
according to Mr Fitzsimons, there was no basis to establish that the applicant was dismissed
for any valid reason.
[17] Mr Fitzsimons also criticised the procedure adopted by the employer which involved
the e-mail advice to the applicant of his dismissal as the first written representation of
complaint. Mr Fitzsimons said that the absence of any prior written warning was completely
inadequate.
[18] Mr Fitzsimons summarised his submissions by concluding that the dismissal of the
applicant was unfair because it was without valid reason and it involved a deficient process,
particularly in respect of the failure by the employer to give any proper warning about the
alleged reasons contained in the letter of dismissal. Mr Fitzsimons urged that the Commission
find in favour of the applicant and that remedy by way of compensation be Ordered.
The Case for the Employer
[19] The employer was represented by Ms Garner who submitted that the dismissal of the
applicant was not unfair. Ms Garner made submissions which elaborated upon documentary
material which had been filed on behalf of the employer.
[20] Ms Garner commenced her submissions by advocating that the evidence provided by
the employer’s witness should be accepted as credible and preferred wherever it differed from
the evidence of the applicant. In this regard, Ms Garner made particular mention that on
balance and weight, the evidence regarding Mr Martin Heran yelling at the applicant in
frustration should be preferred over the blanket denials of the applicant.
[21] Ms Garner submitted that there were valid reasons for the dismissal of the applicant.
Ms Garner said that the sound, defensible and well-founded reasons for dismissal were set out
in the letter of dismissal of 5 September. Ms Garner further submitted that the applicant was
notified of these reasons and that these problems with the applicant’s work performance had
been consistently conveyed to him prior to his dismissal.
[22] Ms Garner further submitted that the applicant had been advised about the employer’s
concerns and the seriousness with which the issues were being treated by the employer.
Further, Ms Garner submitted that the applicant had been given opportunity to improve his
[2013] FWC 2224
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performance and it was conveyed to him that if he didn’t get his act together he could be
dismissed from employment. Consequently, according to the submissions of Ms Garner, the
applicant was not denied natural justice and the allegations set out in the letter of dismissal
would not have come as a surprise to the applicant.
[23] It was also submitted by Ms Garner that even if there was some validity to the
criticism of the process adopted by the employer, the problems with the applicant’s
performance were of such a serious ongoing nature that even if a formal warning process had
been followed, the outcome would not have been likely to have been any different.
[24] Ms Garner also submitted that the Commission should have regard for the nature and
size of the employer’s business. Ms Garner said that it would be unrealistic to expect that a
family business without dedicated human resource management would adopt formalised
procedures of a kind that might be found in other less familial workplaces.
[25] Ms Garner submitted that there was no basis to find that the applicant had been
unfairly dismissed. However, if the Commission was disposed to find in favour of the
applicant then Ms Garner said that any remedy should be confined to limited compensation.
Ms Garner stressed that the applicant had not mitigated his loss and she referred to evidence
that the applicant did not actively pursue an offer of alternative employment made to him
shortly after the dismissal.
Consideration
[26] Section 385 of the Act stipulates that the Commission must be satisfied that 4
cumulative elements are met in order to establish an unfair dismissal. These elements are:
(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.
[27] There was no dispute that in this instance the matter was confined to a determination
of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal
of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria
that the Commission must take into account in any determination of whether a dismissal is
harsh, unjust or unreasonable. These criteria are:
(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
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(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.
387 (a) - Valid reason for the dismissal related to capacity or conduct
[28] In this case the applicant was dismissed for unsatisfactory work performance. The
nature of the unsatisfactory performance was particularised in ten points which were included
as reasons in the letter of dismissal. Consequently, the Commission has been required to
examine the ten reasons for dismissal and establish whether one or more of those reasons
could be held to be valid.
[29] For a reason to be a valid reason it must, inter alia, be capable of being established as a
fact upon which the decision to dismiss was based. The Commission must, logically, have
some evidence upon which to make the necessary finding of fact. In this instance there was no
evidence provided by either the author of the letter which contained the ten reasons or the
person who made the decision to dismiss, Brian Heran.
[30] Evidence which is provided by others and which may support the prospect that the ten
reasons contained in the letter of dismissal have a basis in fact, cannot necessarily be
translated into an evidentiary basis upon which findings could be made that those reasons
were in fact the reasons held in the mind of the decision maker. As a matter of fundamental
justice, how could the Commission find that the reasons have a basis in fact as the reasons for
dismissal, without there being some testing of those reasons with the person who apparently
held them to be facts upon which the decision to dismiss was taken?
[31] Unless the circumstances of a particular case allow for some means to establish
incontrovertible evidence upon which the reason or reasons for dismissal can be established in
fact as the reason(s) for dismissal, the absence of any direct evidence from the decision maker
leads to an evidentiary conundrum. The resultant difficulty manifests as a requirement for the
Commission to make an assumption that the stated reason or reasons were in fact those relied
upon by the decision maker. In simple terms, how can the Commission be satisfied that what
others said were the reasons for dismissal, was also what the decision maker thought?
[32] In addition to what I have described as the evidentiary conundrum created by the
absence of any direct evidence from the decision maker, there was also considerable
[2013] FWC 2224
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challenge made to the accuracy and or actual existence of each of the ten stated reasons
contained in the letter of dismissal.
[33] For example, point 8 involved the pouring of a concrete driveway which had to
subsequently be pulled up to permit underground services to be installed. There was
inconclusive evidence provided during the Hearing as to whether or not the applicant or
Stephen Heran was responsible for the pouring of the concrete driveway. The Commission
simply had no evidence as to what the decision maker, Brian Heran, understood to be the
factual position as to who was responsible for the pouring of the concrete driveway.
Essentially, the Commission would have to assume that Brian Heran believed that the
applicant was responsible, otherwise that reason would not have been mentioned. However
the evidence presented during the Hearing could not necessarily support the conclusion which
had apparently been reached by Brian Heran.
[34] There was strong challenge made to the accuracy or actual existence of each of the
stated reasons for dismissal. Without the benefit of hearing from Brian Heran about such
challenge, the Commission is presented with a completely unsatisfactory evidentiary position
which does not enable proper findings of fact to be made as verification of the stated reasons
for dismissal.
[35] The evidence did establish that a number of the employer’s managers had expressed
considerable dissatisfaction with the applicant’s performance over an extended period.
However, an employer’s general dissatisfaction cannot, particularly in the absence of any
direct evidence from the person who made the decision to dismiss, be translated into a proper
evidentiary basis upon which the Commission is able to make findings of fact that the stated
reasons for dismissal were valid.
[36] The absence of any evidence from the person who made the decision to dismiss has
prevented any finding that there was valid reason for the dismissal. The failure to call the
decision maker as a witness also has other ramifications which are mentioned later in this
Decision.
387 (b) - Notification of reason for dismissal
[37] The employer provided telephone and e-mail notification of the reasons for the
applicant's dismissal. The manner in which these notifications were given to the applicant was
entirely inappropriate.
[38] Unless there is some practical or logistical impediment, common decency requires that
advice of termination of employment be made in person.
[39] It appeared that common decency was not an overabundant characteristic of the
employer’s operation as evidenced by the 28 June 2012 e-mail instruction from Shane Heran
to the applicant which stated: “Plumbing in unit 11 kitchen is in wrong fucking place fix it
now fuckwit.”3
387 (c) - Opportunity to respond to any reason related to capacity or conduct
[40] The employer’s first documented complaint about the applicant’s work performance
was made when it sent him e-mail advice of his dismissal.
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[41] Consequently, there was no opportunity for the applicant to consider the points
contained in the letter of dismissal and respond to the allegations made against him. It is
purely hypothetical as to whether or not, if given an opportunity, the applicant may have been
able to disavow Brian Heran of his apparent predetermined view as to the particular reasons
for dismissal that were contained in the e-mail from Stuart Knock.
387 (d) - Unreasonable refusal to allow a support person to assist
[42] Consistent with other aspects of the employer’s treatment of the applicant and so as to
ensure the adoption of a comprehensively erroneous procedure, the employer did not provide
any meeting or other forum which might have involved the presence of a support person to
assist the applicant. Strictly speaking, there was no refusal to allow a support person to assist
the applicant because there was no procedure which could have presented as an opportunity
for the applicant to request a support person.
387 (e) - Warning about unsatisfactory performance
[43] This factor has particular relevance in this case where the applicant was dismissed for
reasons of unsatisfactory work performance.
[44] There was no evidence of any formal written warning made to the applicant. The
employer attempted to rely upon the prior (and subsequently reversed) dismissal of the
applicant in June 2011 as representing a warning to the applicant. However that dismissal was
stated to be for reason of “...downturn in our business activity,...”4. During the Hearing, the
employer sought to recant from the stated reason and instead Martin Heran said that the
primary reason for the earlier dismissal was the applicant’s “poor workmanship and
performance”5.
[45] Martin Heran was questioned about the earlier, reversed, dismissal of the applicant and
the extent of the employer’s misrepresentation of the reason for that action expanded to the
point that according to Martin Heran, the applicant was dismissed for “gross incompetency”6.
[46] In an endeavour to demonstrate prior warning to the applicant, the employer
introduced a suggestion that the applicant had also been dismissed on another occasion
nominated to have been 4 October 2011. There was no evidentiary material provided to
support this assertion and during the Hearing the proposition appeared to lapse.
[47] The overall impression that emerges from an examination of the evidence which was
advanced in the employer’s attempt to establish that the applicant had been given prior
warning can be summarised as a confused “clutching at straws”. This unfortunate situation
was confirmed when, on the second day of Hearing, Glenn Heran provided the following
testimony:
“So when you say "warning", you're talking about an official warning. You're not in a
position to say, "Here's your first warning, here's your second warning, there's your
third warning"?---To tell the truth, I thought Stuart Knock, our accountant, had done
that. I thought that was already done. Until this morning I didn't know it wasn't done.
I don't know why.”7
[2013] FWC 2224
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387 (f) - Size of enterprise likely to impact on procedures
[48] The employer is a medium sized family business. It is acknowledged and accepted that
a business of this type may operate with a considerable degree of informality in the manner
with which it deals with its employees. Further, there was evidence that several of the
employer’s managers had developed considerable frustration with the perceived inadequacies
of the applicant’s work performance. In these circumstances, it would be unrealistic to expect
the employer to adopt sophisticated processes for dealing with the potential for termination of
employment.
[49] However, there was not even an informal meeting or other discussion between the
decision maker, Brian Heran, and the applicant before the decision to dismiss was taken. It is
difficult to accept that it could be reasonable or just for any employee to be dismissed without
a fundamental process that included the opportunity to put a case, face to face, with the
decision maker.
[50] The requirement for such a process is primarily derived from the notions of natural
justice. Large organisations usually have structured hierarchies that devolve decision making
to particular individuals. These decision makers will logically rely heavily on information and
recommendations provided by others. However, no matter what size the organisation, if the
decision maker determines something as serious as termination of employment without
providing opportunity for face to face contact, he or she risks creating the appearance that
they do not have the courage of their convictions. In addition, both the legal and ethical basis
for the decision is open to manifest challenge.
[51] In a medium sized family business which is not encumbered by the bureaucracies of a
large enterprise, there would be little difficulty for the decision maker to provide some basic
respect for human dignity and advise of any termination of employment personally. The
callous act of instructing someone else to tell the dismissed employee the “bad news” appears
to reinforce the earlier mentioned suggestion regarding a lack of courage of conviction. This
unfortunate approach appeared to have been repeated with the absence of the decision maker
from the proceedings before the Commission.
[52] For completeness it should be stated that there are exceptional circumstances where a
decision to dismiss might be appropriately taken without need to provide the employee with
an opportunity to be heard in person. These exceptional circumstances usually involve acts of
gross and wilful misconduct, admitted or undeniably existent, and which warrant no further
inquiry because no possible explanation or mitigation could alter the decision. In this case the
dismissal was for reasons of alleged poor work performance and must therefore be contrasted
with a dismissal based on gross and wilful misconduct.
387 (g) - Absence of management specialists or expertise likely to impact on procedures
[53] The employer did not have dedicated employee relations management specialists.
However an expert is not required in order to provide a procedure that contains a basic level
of common human decency.
387 (h) - Other relevant matters
[2013] FWC 2224
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[54] There was evidence provided by those witnesses who were called by the employer
which established that the applicant’s work performance was, in their opinion, unsatisfactory.
Importantly, none of these individuals were responsible for the decision to dismiss the
applicant. However, I have not discarded the evidence from the employer’s witnesses which
upon an objective assessment, leads me to conclude that there was legitimate basis for serious
concern about particular aspects of the applicant’s work performance.
[55] Consequently I have balanced the evidence which verified legitimate basis for
criticism of the applicant’s work performance against the various other factors under
consideration. The corollary of this consideration is that I am unable to countenance that an
extended period of general dissatisfaction with the work performance of the applicant should
operate to displace the requirement that the applicant was entitled to natural justice. In
particular, it would not have been onerous or unrealistic for the decision maker to have put the
ten reasons contained in the letter of dismissal to the applicant and heard “his side of the
story” before any decision to dismiss was taken.
Conclusion
[56] The decision to dismiss the applicant was taken by Brian Heran who was not called to
give evidence in these proceedings. The absence of evidence from the decision maker is
ordinarily problematic in one of these matters. In a case involving a dismissal for
unsatisfactory work performance the absence of any evidence from the decision maker would
almost invariably be fatal to the defence. In this instance this difficulty was compounded by
evidence that the decision maker had no direct contact with the applicant concerning the
termination of his employment.
[57] The procedure that the employer adopted to deal with the implementation of the
dismissal represented a blatant example of a denial of natural justice.
[58] The absence of any evidence from the person who apparently concluded that ten
reasons existed as the basis for dismissal means that those reasons can not be properly verified
as findings of fact to have been the reasons for dismissal. Consequently, the Commission
must conclude that there is insufficient evidence upon which to establish that the dismissal of
the applicant was for valid reason. A dismissal without valid reason and implemented by way
of a procedure which involved a very unfortunate absence of natural justice must be held to
have been harsh, unjust and unreasonable.
Remedy
[59] The applicant has not sought reinstatement as remedy for his unfair dismissal. Instead,
the applicant has asked that the Commission make Orders for monetary compensation
pursuant to s. 392 of the Act which is in the following terms:
“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.
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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:
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(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.”
[60] I have decided that compensation would be an appropriate remedy for the applicant’s
unfair dismissal and I turn to the factors which involve the quantification of any amount of
compensation.
[61] Section 392 of the Act prescribes certain matters that deal with compensation as a
remedy for unfair dismissal. I have approached the question of compensation having regard
for the guidelines that were established in the Full Bench Decision in Sprigg v Paul’s
Licensed Festival Supermarket8 and as commented upon in the subsequent Full Bench
Decision in Smith and Ors v Moore Paragon Australia Ltd 9.
[62] Firstly, I confirm that an Order of the payment of compensation to the applicant will
be made against the employer in lieu of reinstatement of the applicant.
[63] Secondly, in determining the amount of compensation I have taken into account all of
the circumstances of the matter including the factors set out in paragraphs (a) to (g) of
subsection 392 (2) of the Act.
[64] There was no evidence that an Order of compensation would impact on the viability of
the employer’s enterprise.
[65] The applicant had approximately 5 years and 4 months service as an employee.
[66] The applicant would have been likely to have received remuneration of approximately
$2,300 per week if he had not been dismissed. There was some prospect that the employment
may not have endured beyond a further year particularly if there had been proper attempts to
warn the applicant of work performance inadequacies and he had been unable to rectify such
concerns.
[67] The applicant has made efforts to mitigate the loss suffered because of the dismissal
and he obtained 3 days fencing work which provided income of $1,170. The applicant did not
earnestly pursue an offer of work which was made to him in the area of real estate sales. The
applicant said that he was unfamiliar with and undesirous of working in real estate sales. The
applicant has not secured any other employment.
[68] Thirdly, in this instance there was no evidence that any misconduct of the applicant
contributed to the employer's decision to dismiss.
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[69] Fourthly, I confirm that any amount Ordered does not include a component by way of
compensation for shock, distress or humiliation, or other analogous hurt caused to the
applicant by the manner of the dismissal.
[70] There are two other relevant matters. The consideration of all factors relevant to
compensation should be approached having cognisance that compensation should not be
confused with penalty. I am mindful that compensation should not include some amount
which represents a punishment to the employer for their actions in dismissing the applicant
unfairly.
[71] Further, the written submissions of the applicant confined his claim for compensation
to an amount of twelve weeks pay. Although I would have determined an amount
approximating with twenty weeks pay, I am confined to the claim as quantified by the
applicant.
[72] Consequently for the reasons outlined above, I have decided that an amount
approximating with twenty weeks remuneration should be provided as compensation to the
applicant and this amount has been adjusted in accordance with the applicant’s claim for
twelve weeks. Consequently the amount that I Order as compensation is a gross figure of
$27,600. Separate Orders [PR535620] providing for remedy in these terms will be issued.
COMMISSIONER
Appearances:
Mr A Fitzsimons, barrister, appeared for the applicant;
Ms K. Garner, barrister, appeared for the employer.
Hearing details:
2013.
Brisbane:
March, 11 & 12.
Printed by authority of the Commonwealth Government Printer
Price code C, PR535618
JAL OF F THE ORK COMMISSION Hra
[2013] FWC 2224
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1 Exhibit 5.
2 Jones v Dunkel (1959) 101 CLR 298.
3 Exhibit1 Annexure “EA-2”.
4 Exhibit 5.
5 Exhibit 4 paragraph 13.
6 Transcript of proceedings (11 March 2013) @ PN1082.
7 Transcript of proceedings (12 March 2013) @ PN1436.
8 Sprigg v Paul’s Licensed Festival Supermarket, (Munro J, Duncan DP and Jones C), (1998) 88IR 21.
9 Smith and Ors v Moore Paragon Australia Ltd, (Lawler VP, Kaufman SDP and Mansfield C), (2004) PR942856.
