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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Lynda Pykett
v
Technical and Further Education Commission T/A TAFE NSW (No.3)
(U2012/14988)
COMMISSIONER MCKENNA SYDNEY, 7 NOVEMBER 2013
Application for unfair dismissal remedy - remedy.
[1] This is the third decision concerning an application by Lynda Pykett (“the applicant”)
made pursuant to s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal
remedy arising from her termination of employment by the Technical and Further Education
Commission T/A TAFE NSW (“the respondent”) (see Pykett v Technical and Further
Education Commission T/A TAFE NSW [2013] FWC 4982 (“Pykett No.1”) and Pykett v
Technical and Further Education Commission T/A TAFE NSW [2013] FWC 8196 (“Pykett
No.2”)).
[2] An order has already issued [PR543507] in conjunction with the decision in Pykett
No.2 concerning the applicant’s reinstatement pursuant to s.391(1)(b) of the Act. There were,
as noted in Pykett No.2 from [46], outstanding matters concerning the question of making
orders, if any, for continuity of employment and lost pay. The provisions of the Act relevant
to this application as to remedy read as follows:
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer
at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed
immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less
favourable than those on which the person was employed immediately before
the dismissal.
(1A) ...
Order to maintain continuity
[2013] FWC 8679
DECISION
E AUSTRALIA FairWork Commission
[2013] FWC 8679
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(2) If the FWC makes an order under subsection (1) and considers it appropriate to do
so, the FWC may also make any order that the FWC considers appropriate to maintain
the following:
(a) the continuity of the person’s employment;
(b) the period of the person’s continuous service with the employer, or (if
subsection (1A) applies) the associated entity.
Order to restore lost pay
(3) If the FWC makes an order under subsection (1) and considers it appropriate to do
so, the FWC may also make any order that the FWC considers appropriate to cause the
employer to pay to the person an amount for the remuneration lost, or likely to have
been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the
FWC must take into account:
(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the
person during the period between the making of the order for reinstatement and
the actual reinstatement.”
[3] On 25 October 2013, the parties made submissions concerning the making of orders
under the Act pursuant to s.391(2) concerning continuity of the applicant’s employment and
pursuant to s.391(3) in relation to an amount for the remuneration lost, or likely to have been
lost, by the applicant because of the dismissal.
[4] There was nothing advanced in the parties’ submissions to weigh against the making
of an order pursuant to s.391(2) of the Act. I otherwise consider a restorative order in this
regard is appropriate given, in particular, the applicant’s age and length of service with the
respondent.
[5] My decision in Pykett No.2 read:
“[41] ... The particular occupational focus of the applicant’s experience in her
employment over more than three decades with the respondent might perhaps be
considered to weigh against her finding alternative employment other than with the
respondent itself. I accept the submissions the applicant would be likely to encounter
difficulties in finding alternative employment and, in this regard, the applicant’s age
again arises.”
[6] The submissions on 25 October 2013 confirmed the applicant has not earned any
remuneration from employment or other work during the period of the dismissal and the
making of the order in PR543507. In Pykett No.2, I had noted at [47] the payments already
[2013] FWC 8679
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received by the applicant in connection with her termination of employment “obviously will
need to be considered”. These payments included redundancy payments.
[7] Nothing was advanced in the parties’ submissions that would weigh against the
making of an order pursuant to s.391(3) of the Act and I otherwise consider an order in this
regard is appropriate.
[8] The parties have now conferred about financial calculations in this respect. On 6
November 2013, documentation was lodged confirming “the amount of backpay to be paid
and the terms of the draft order have been agreed between the parties”.
[9] The money amount that forms the basis of the order pursuant to s.391(3) of the Act
has been calculated as a result of the parties’ discussions. The figure takes into account the
payments already made by the respondent to the applicant in connection with the termination
of the employment. In consequence, there is no double dipping, as it were, in the payments
now specified in the orders. I consider it is appropriate to make an order pursuant to s.391(3)
of the Act, reflecting calculations and terms agreed by the parties.
[10] An order concerning continuity of employment and lost pay has been issued in
conjunction with the issuing of this decision.
COMMISSIONER
Appearances:
M. Gibian of counsel, for the applicant.
M. Easton of counsel, for the respondent.
Hearing details (re orders concerning continuity and lost pay):
2013.
Sydney:
25 October 2013.
Final written submissions:
6 November 2013
Printed by authority of the Commonwealth Government Printer
Price code A, PR544138
