1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Chamani Siriwardhana
v
FDGH Pty Ltd T/A Caltex Fitzroy North
(U2013/397)
COMMISSIONER ROE MELBOURNE, 12 AUGUST 2013
Termination of employment - small business-genuine redundancy.
[1] The matter arises from an application filed on 12 February 2013 under s 394 of the
Fair Work Act 2009 (the Act) by Ms Chamani Siriwardhana (the Applicant) for relief in
respect to the termination of her employment from FDGH Pty Ltd T/A Caltex Fitzroy North
(the Respondent).
[2] Following an unsuccessful conciliation conference the matter proceeded to arbitration.
The parties elected to proceed to a conference and a hearing. The Applicant represented
herself with the assistance of her partner Mr De Silva. The Respondent was represented by the
owners Ms Debra Hanna and Mr Giannone.
[3] It is not in contention and I am satisfied that:
The Applicant was employed as a casual console operator at the Fitzroy North
service station for a period of two years and eight months until her dismissal at the
initiative of the employer on 24 January 2013.
The Applicant worked the same regular shifts on Tuesday, Saturday and Sunday
throughout this period. The Applicant worked additional shifts on occasion. The
Applicant could only recall one period of leave of approximately one month during
her employment. The Applicant requested and was granted one day of absence on
or around Christmas Day 2012. The Applicant therefore has a period of more than
12 months continuous service which satisfies the minimum employment period for
protection from unfair dismissal under the Act. The period of service as a casual
employee counts towards the minimum employment period because the
employment was regular and systematic and the employee had a reasonable
expectation of continuing employment on the same basis.
There was a transfer of business to the Respondent on 17 December 2012. The
employment of the Applicant and one other employee continued after the transfer
of business. The Applicant continued to work the same shifts after the transfer of
[2013] FWC 5609 Note: An appeal pursuant to s.604 (C2013/5599) was
lodged against this decision - refer to Full Bench decision dated 17 October
2013 for result of appeal.
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2013FWCFB8144.htm
[2013] FWC 5609
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business until her dismissal with the exception of the day off for Christmas referred
to earlier.
The Applicant was not dismissed because of any issue of conduct or performance.
Upon the transfer of business, the Respondent agreed to pay the Applicant each
Tuesday.
The Applicant had raised with Ms Hanna from the Respondent issues concerning
the absence of pay slips, the amount of her pay and the timeliness of payment on a
number of occasions during the period from 18 December 2012 to 24 January
2013. The Respondent accepts that as new owners they did have difficulty with
sorting out the issue of the correct pay rates, superannuation, pay slips and
payments. On several occasions Ms Hanna told the Applicant to take an amount of
money from the till as part payment of her wages.
The meeting between Ms Hanna and the Applicant on 24 January 2013 occurred
because on 22 January 2013 the Applicant provided bank details as requested to the
Respondent for direct transfer of pay. The Applicant rang Ms Hanna on 24 January
and was told that the pay had not been transferred and it was arranged that the
Applicant could travel to Fitzroy North and collect the pay instead of waiting for
another day or two for the direct transfer. There was no suggestion that the issue of
future employment would be discussed at the meeting, which the Applicant thought
was purely to receive her pay which was due to have been paid on Tuesday 22
January 2013.
There was no letter of termination and there was no prior advice that termination
might be discussed at the meeting on 24 January 2013.
The Respondent is a national system employer and the Applicant is, save for the
issue of genuine redundancy, protected from unfair dismissal in that she was
employed for a continuous period of more than 12 months and was dismissed at the
initiative of the employer.
The Respondent alleges that it was a small business in that at the time of the
termination it employed up to 13 employees including the Applicant at the Fitzroy
North service station.
The Respondent does not rely on the small business code as the Respondent argues
that the termination was a genuine redundancy. The Respondent does not raise any
other basis for the termination.
There is no applicable collective agreement.
The Vehicle Manufacturing, Repair, Services and Retail Award 2010 (the Award)
applies to the Respondent and the work of the Applicant for the Respondent. The
console operators’ work is covered by Clause 36.3 of the Award.
Small business
[4] The issue of associated entities was not fully explored during the hearing of this matter
given the evidence of Ms Hanna that prior to the takeover of the Fitzroy North service station
on 17 December 2012 she had not previously been a business owner or a manager. However,
during the proceedings there was some suggestion that Ms Hanna and Mr Giannone may have
an interest in other service stations and have transferred staff from those service stations to the
Fitzroy North business. For reasons that will become apparent it is not necessary to finally
determine the issue of whether or not there are associated entities and or whether or not the
Respondent is a small business. During the proceedings I acted on the basis that the
Respondent was a small business given the uncontested evidence of Ms Hanna concerning her
previous experience as an owner or manager.
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The threshold issue - genuine redundancy.
[5] The threshold issue is whether or not the dismissal was a genuine redundancy. Section
385(d) of the Act provides that if I am satisfied that the dismissal is a genuine redundancy
then it cannot be an unfair dismissal. I drew the provisions of the Act to the parties’ attention
to give them an opportunity to provide relevant evidence and submissions.
[6] Genuine redundancy is defined as follows by the Act:
“389 Meaning of genuine redundancy
(1) A persons dismissal was a case of genuine redundancy if:
(a) the person’s 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.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been
reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.”
Operational Requirements.
[7] Ms Hanna gave evidence that she was a director of the company but was also paid
wages by the company. The service station operates 24 hours a day and a console operator
works on each of three shifts per day. Morning shift from 8am to 3pm. Afternoon shift from
3pm to 11pm and Night shift from 11pm to 8am. The Applicant worked the Tuesday
afternoon shift and the Saturday and Sunday morning shifts. When the Respondent took over
the service station Ms Hanna worked the morning shifts Monday to Friday. Ms Hanna gave
evidence that she decided around the time of taking over the business that she would take over
more shifts or part of shifts at some time when things had settled down. When Ms Hanna
takes over a shift it does not necessarily decrease the costs to the business as Ms Hanna gave
evidence that she is paid a wage by the business, however, maximising the income of the
owners could be regarded as an operational requirement.
[8] Ms Hanna gave evidence that the only shifts taken over by Ms Hanna are the shifts
formerly worked by the Applicant although she has also adjusted the length of some other
shifts worked by other employees.
[9] Ms Hanna gave evidence that there were other employees who were not regular and
systematic casuals like the Applicant but who were only working temporarily. There were
others who were newly engaged to work at this service station. It was only the Applicant and
one other employee who had been long term regular and systematic casuals and who
remained with the business following the transfer of business.
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[10] Ms Hanna gave evidence that the reason she dismissed the Applicant was because she
wanted to takeover more shifts herself and that she has worked the shifts worked by the
Applicant with the assistance of her partner Mr Giannone since the time of the dismissal. Mr
Giannone is not on the payroll. The extent that the work is unchanged and is being done by
Ms Hanna and is subject to wages, I have some doubts as to whether it can be said that “the
person’s 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.”
[11] I am satisfied that the operational requirements of the employer’s enterprise might be
fairly described as including a requirement to reduce wages paid to those other than the
owners of the business in order to maximise revenue to the owners. The work of console
operator on the shifts worked by the Applicant still exists. The shifts are still being filled.
However, Ms Hanna says other administrative functions associated with the business are
being done during those shifts and the work might be said to be different to this extent.
[12] Ms Hanna gave evidence that she took over the shifts, however, she also gave
evidence that her partner Mr Giannone assisted with the weekend shifts. To the extent that Mr
Giannone was doing that work then that part of the Applicant’s job was no longer to be
performed by any employee and that change is for operational reasons.
[13] Taking these considerations into account I find on the balance of probabilities that the
Applicant’s job was redundant.
Did the employer comply with any obligation to consult?
[14] The obligation to consult is contained in Clause 8 of the Award which provides as
follows:
“8. Consultation regarding major workplace change
8.1 Employer to notify
(a) Where an employer has made a definite decision to introduce major
changes in production, program, organisation, structure or technology that are
likely to have significant effects on employees, the employer must notify the
employees who may be affected by the proposed changes and their
representatives, if any.
(b) Significant effects include termination of employment; major changes in
the composition, operation or size of the employer’s workforce or in the skills
required; the elimination or diminution of job opportunities, promotion
opportunities or job tenure; the alteration of hours of work; the need for
retraining or transfer of employees to other work or locations; and the
restructuring of jobs. Provided that where this award makes provision for
alteration of any of these matters an alteration is deemed not to have significant
effect.
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8.2 Employer to discuss change
(a) The employer must discuss with the employees affected and their
representatives, if any, the introduction of the changes referred to in clause 8.1,
the effects the changes are likely to have on employees and measures to avert
or mitigate the adverse effects of such changes on employees and must give
prompt consideration to matters raised by the employees and/or their
representatives in relation to the changes.
(b) The discussions must commence as early as practicable after a definite
decision has been made by the employer to make the changes referred to in
clause 8.1.
(c) For the purposes of such discussion, the employer must provide in writing
to the employees concerned and their representatives, if any, all relevant
information about the changes including the nature of the changes proposed,
the expected effects of the changes on employees and any other matters likely
to affect employees provided that no employer is required to disclose
confidential information the disclosure of which would be contrary to the
employer’s interests.”
[15] I am satisfied that the decision by the Respondent to reorganise the business so that
more shifts would be worked by the owner rather than other employees is a major change
with significant effects on employees which trigger the obligation to consult under this clause.
[16] Ms Hanna gave evidence that she told the Applicant when she came in to collect her
pay on 24 January 2013 that she wanted to do extra hours and that therefore the Applicant’s
hours were no longer available to her and that she would not be required for work in the
future.
[17] The Applicant denies that there was any mention on 24 January 2013 of the desire by
Ms Hanna to work extra hours. The Applicant believes that the termination was because she
had been persistent in raising the issue of the correct amount of her pay, the timeliness of her
pay and the provision of pay slips. The Applicant does not suggest that Ms Hanna said this
was a reason for termination. The Applicant described the meeting with Ms Hanna as follows:
“When I went to meet her to get my pay she told me “the shop gets busy specifically
during my shift. The fridge needs to be filled at my shifts and that she need someone
who is strong and tall enough to fill the fridge during my shift. The boy how tried once
on my shift on Sunday the (13 Jan) is tall and strong. We need someone who can do a
manly Job. And you don’t need to come to work from today onwards.” I was given my
last pay and was asked to leave the store.”1
[18] Even if I accept the evidence of Ms Hanna it could not be regarded as consultation
about potential redundancy which meets the requirement of the Award. Consultation means a
bona fide opportunity to influence the decision maker. There was no suggestion from Ms
Hanna that she was giving the Applicant a bona fide opportunity to influence the outcome. Ms
Hanna was simply advising the Applicant of her decision and the reason for that decision.
1 Exhibit S2, para 9.
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[19] I am satisfied that if it had been intended that the conversation be an opportunity for
consultation it would have been arranged in a different manner. The meeting was not planned
and it only occurred because the Applicant came in to work especially to get her pay.
[20] Ms Hanna did not suggest that the Applicant was invited to discuss the decision or the
matters raised by Ms Hanna.
[21] I am satisfied that the Respondent did not meet the consultation requirements of the
Award.
Would it have been reasonable in all the circumstances for the Applicant to be
redeployed within the employer’s enterprise?
[22] The Full Bench in Ulan Coal Mines Limited v Honeysett and others2 set out how
Section 389(2) should be approached:
“[26] First, s.389(2) must be seen in its full context. It only applies when there has been
a dismissal. An employee seeking a remedy for unfair dismissal cannot succeed if the
dismissal was a genuine redundancy. In other words, if the dismissal is a case of
genuine redundancy the employer has a complete defence to the application. Section
389(2) places a limitation on the employer’s capacity to mount such a defence. The
defence is not available if it would have been reasonable to redeploy the employee.
The exclusion poses a hypothetical question which must be answered by reference to
all of the relevant circumstances.”3
[23] The Full Bench considered what may be relevant in considering whether or not
redeployment would be reasonable:
“Of course the job must be suitable, in the sense that the employee should have the
skills and competence required to perform it to the required standard either
immediately or with a reasonable period of retraining. Other considerations may be
relevant such as the location of the job and the remuneration attaching to it.”4
[24] The evidence in respect to this matter can be summarised as follows:
The Applicant did not wish to work night shift because she did not drive and
because she had some concerns about personal security. This was known to Ms
Hanna.
The Applicant had on at least one occasion in the month she was employed after
the transfer of business worked an additional shift at the request of the Respondent.
The Applicant had on a number of other occasions declined to work additional
shifts.
The Applicant was prepared to work additional shifts at a nearby service station
operated by the former owner of Caltex Fitzroy North but no shifts were available
during the period between the transfer of business and the termination. However,
2 [2010] FWAFB 7578.
3 [2010] FWAFB 7578, at paras 26 to 28.
4 [2010] FWAFB 7578, at para 34.
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the Applicant was not prepared to do additional shifts at another more distant
location.
The Respondent was aware that the Applicant’s partner had a photography business
and she was aware that the Applicant sometimes helped in this business. Ms Hanna
gave evidence that on occasion the Applicant would have to ask permission from
her partner as to whether or not she could work an additional shift.
The Applicant gave evidence that she would have had no difficultly changing to
work on other days of the week provided it was on morning or afternoon shift. The
Applicant gave evidence that because of transport issues she had not accepted some
shifts offered at short notice.
Ms Hanna gave evidence that it was convenient for her to take the Tuesday
afternoon shift because there was a lot of other paperwork to be done on Tuesday’s
which she could combine with doing the console work.
Ms Hanna gave evidence that there is no reason why the Applicant could not have
been given other shifts being done by other casuals on a temporary basis. However,
Ms Hanna believed that the Applicant was not sufficiently flexible in terms of her
availability to work different shifts as required.
[25] If the consultation requirement had been met it is possible that the discussions between
the parties might have led to alternative solutions. It is possible that the redundancy might
have been avoided because the parties came to an agreement upon alternative shifts. The
Respondent might have modified the shifts that Ms Hanna worked for herself. I consider it
probable that the Applicant would have agreed to work alternative shifts, other than night
shifts, if they had been offered. I consider it probable that other alternative shifts may have
been available without the necessity to terminate the employment of regular and systematic
casual workers.
[26] I am not satisfied that it was reasonable for the Respondent to conclude that the
Applicant was not available or suitable for redeployment because of conversations held in a
totally different context about her availability for extra shifts or because of her unavailability
on night shift. I do not consider the fact that in the past the Applicant sought to consult her
partner before agreeing to work extra shifts is a reasonable basis for concluding that the
Applicant was not suitable for redeployment. Further, the absence of private transport and
concerns about personal security on night shift do not provide a reasonable basis for
concluding that the Applicant was not suitable for redeployment.
[27] In all the circumstances I am satisfied that it would have been reasonable to redeploy
the Applicant. In the circumstances of this case redeployment may have been to alternative
and/or reduced shifts.
Conclusion regarding the threshold issue - genuine redundancy
[28] The termination of the Applicant was not a genuine redundancy because there was a
requirement to consult about the redundancy pursuant to the Award which was not complied
with.
[29] If that consultation requirement had been met it is possible that the discussions
between the parties might have led to alternative solutions. It is possible that the redundancy
might have been avoided because the parties agreed upon a productive way for the job to
continue without the need for the redundancy.
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[30] The termination was also not a genuine redundancy because I am satisfied that it
would have been reasonable to redeploy the Applicant within the enterprise.
Was the termination unfair?
[31] The legislation requires me to consider the following matters in a situation where the
small business code is not able to be relied upon:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, FWA 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 FWA considers relevant.”
Was there a valid reason? (s.387(a))
[32] The termination may have been a redundancy but it was not a genuine redundancy.
[33] The Full Bench in UES (Int'l) Pty Ltd v Ball5 looked at the issue of redundancy and
valid dismissal:
“[42] As we have already indicated, in our view the reasons for the dismissal of Mr Ball
by UES were not related to his capacity or conduct (including its effect on the safety
and welfare of other employees). Accordingly, there cannot have been and was not a
valid reason for his dismissal related to his capacity or conduct (including its effect on
the safety and welfare of other employees). In the circumstances of this case we regard
it as a neutral matter with respect to our consideration as to whether Mr Ball’s
dismissal was harsh, unjust or unreasonable.”
5 [2012] FWAFB 5241.
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[34] In my view the Applicant in this case was not dismissed for reasons related to her
capacity or conduct. In this case the Applicant’s position was redundant. However, it is not a
genuine redundancy due to the failure to consult and the failure to redeploy.
[35] In this situation there was no valid reason for the termination related to capacity or
conduct. For the reasons discussed in the UES matter I consider this to be a neutral matter as
to whether the dismissal was harsh, unjust or unreasonable.
Notification and opportunity to respond (ss.387(b) and (c))
[36] The matters in s.387(b) and (c) of the Act deal with whether there was procedural
fairness in respect of a reason for dismissal related to the Applicant’s capacity or conduct. As
a matter of fact the Applicant was not notified of or given an opportunity to respond to a
reason for her dismissal related to her capacity or conduct. However given the reasons for her
dismissal, I regard them as neutral matters with respect to my consideration as to whether the
dismissal was harsh, unjust or unreasonable.
Support person (s.387(d))
[37] The Respondent did not allow the Applicant to have a support person present at the
meeting when she was made redundant. Although the Respondent did not physically prevent a
support person from attending there was clearly no opportunity for a support person to be
present as the Applicant was not advised that termination was to be discussed at the meeting.
This was procedurally unfair. I regard this as a matter which favours a finding that the
dismissal was harsh, unjust or unreasonable.
Unsatisfactory performance (s.387(e))
[38] The dismissal did not relate to her unsatisfactory performance, so this matter is not
relevant to my consideration and I regard it as a neutral matter as to whether dismissal was
harsh, unjust or unreasonable.
Size of the enterprise and human resource management (s.387(f) and (g))
[39] The Respondent is a small organisation without human resource management
expertise. I regard the requirement to consult about redundancy to be a common sense matter.
In other words a reasonable person would not generally regard a termination for reasons of
redundancy to be fair in the absence of consultation about the reasons and an opportunity to
consider alternatives and measures in mitigation. I therefore do not regard the size of business
or the absence of expertise as affecting the lack of consultation. I do not regard this as a
significant matter in favour of a finding that the dismissal was fair. In these particular
circumstances I accept that the absence of expertise may have led to the problems in respect
to the accuracy and timeliness of pay but that is not relevant to the fairness or otherwise of the
termination.
Other matters (s.387(h))
[40] I accept the evidence of the Respondent that there were sound business reasons for the
owners to work more of the shifts. As a consequence there were sound, defensible and well-
founded reasons for some shifts to be removed from other employees. This is a valid reason
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for termination. This is a factor which stands in favour of a finding that the termination was
not harsh, unjust or unreasonable.
[41] I was not satisfied by the evidence of Ms Hanna as to why it was that the particular
shifts of the Applicant were selected to be filled and why it was done at that particular time
and without any consultation.
[42] I found the Applicant to be a convincing witness. The Applicant answered questions
directly even when the answers did not help her cause in these proceedings.
[43] I am satisfied that the Applicant had good reasons to be dissatisfied about the
correctness of her pay rate, the amount of taxation deducted, the absence of pay slips and the
timeliness of payments. I consider it likely that Ms Hanna was somewhat irritated by the
complaints by the Applicant concerning these matters given her evidence, which I accept, that
she was doing her best as a new business owner to get on top of these matters. I consider that
this may have influenced the choice of the Applicant’s shifts. The explanation Ms Hanna gave
as to why she selected the Tuesday afternoon shift over other shifts is reasonable but there are
a number of other shifts when paper work may also be required. There was no explanation as
to why she selected the particular weekend shifts.
[44] There is no requirement in the case of a genuine redundancy to consider the wisdom of
the operational reasons for a redundancy or the fairness of the process for selection of the
person(s) to be made redundant. However, I raise these matters as they go to the fairness of
dismissal of the Applicant in circumstances where I have found that there was not a genuine
redundancy.
[45] It is possible that the Applicant may have misunderstood what Ms Hanna said about
the preference for someone who is tall and strong but I do not find the Applicant to have been
untruthful.
[46] I have found that the failure to consult was unreasonable and that consultation may
have led to a different outcome. I have also found that it was probable that the Applicant
could have been redeployed to other shifts.
[47] In the circumstances of this case the failure to consult made the termination and the
procedure utilised unfair. This was a significant failing and one which stands strongly in
favour of a finding that the termination was harsh, unjust and unreasonable. The same applies
to the failure to genuinely consider all options for redeployment.
[48] The Applicant provided some evidence of the distress caused to her due to the
termination. The Act specifically excludes issues relating to distress and humiliation from
consideration in respect to determining the amount of compensation. I am satisfied that the
termination caused distress and humiliation to the Applicant. The failure to take account of
the likely impact of a termination upon an employee can contribute to a finding concerning
the harshness of a termination. However, this will often relate to characteristics of an
employee which are known or might reasonably be known at the time of the termination. This
is not relevant in this case.
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Conclusion regarding harsh, unjust or unreasonable
[49] Taking into account the matters referred to above, I am satisfied that the Applicant’s
termination by the Respondent was harsh, unjust and unreasonable. The unfairness inherent in
the failure to consult and to redeploy outweighs the other factors.
Remedy
[50] The Applicant does not seek reinstatement. The Applicant says that she does not wish
to return due to the stress associated with the dismissal and she provided medical evidence to
support this. The Applicant says that she does not want to return to a situation where she has
to constantly intervene to ensure she is paid correctly and on time. The Applicant also gave
evidence that she had decided to seek an alternative career. She is qualified as an accountant
and she is involved in a job seeker and career program and has been applying for more than
ten jobs each fortnight. None of the jobs she has applied for has been for a service station
consol position.
[51] The Applicant has not been employed since the termination.
[52] In all of the circumstances I am satisfied that the reinstatement of the Applicant is
inappropriate.
[53] I consider that an order for compensation would be appropriate in the circumstances of
this case.
[54] In considering compensation I am required by Section 392(2) to consider the
following:
“(2) In determining an amount for the purposes of an order under subsection (1), FWA
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 FWA considers relevant.”
[55] In considering these matters I have not included a component by way of compensation
for shock, distress or humiliation, or other analogous hurt, caused to the Applicant by the
manner of her dismissal.
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[56] Nothing was put to me that suggests that any order I might make would affect the
viability of the enterprise.
[57] I consider the length of service with the employer of two years and eight months to be
a reasonably long period of service in the context of the industry.
[58] The Applicant has satisfied the requirements of Centrelink by applying for ten jobs per
fortnight. She has also made other efforts to improve her employability including by
undertaking volunteer work and engaging in a career development program. I do not consider
her failure to apply for service station jobs means that she has not made adequate efforts to
mitigate her loss. I consider it sufficient that her efforts meet the rigorous requirements of
Centrelink. Provided that an employee makes adequate efforts to mitigate their loss by
seeking paid employment for which they are reasonably qualified I do not consider that equity
and the provisions of the Act require that job seeking efforts must be in the same area as the
former employment. The experience of dismissal may in some cases mean that an employee
has good reason to seek employment in a new area. I am satisfied that the Applicant has made
adequate efforts to mitigate her loss and find alternative employment and I would make no
deduction on this account. This was not contested.
[59] I have also made no deduction for misconduct of the Applicant as I do not consider
that any misconduct has been established.
[60] The Applicant has no earnings from employment during the period since the
termination and the date of this decision.
[61] The period between the making of the order for compensation and the actual
compensation will be twenty one days. I do not consider it appropriate to make any deduction
for possible earnings in this period.
[62] In determining the likely period of further employment and earnings had the dismissal
not occurred I consider four factors to be of particular relevance. Firstly, the Applicant has
decided to change career direction. The Applicant accepted that even if she had not been
dismissed she would probably have made this decision in the next twelve months or so.
Secondly, the Applicant is employed on a casual basis and it is likely that had consultation
occurred about the redundancy the Applicant would have been redeployed to changed and/or
reduced shifts. I consider it likely that this may have accelerated consideration of a career
change. Thirdly, because of the nature of the business and its new ownership further changes
to the business are possible. Fourthly, the relatively long period of stable employment pattern
and the uncontested evidence of good performance suggest a relatively long period of
continuing employment. I consider that if the Applicant had not been dismissed she would not
have been employed for a period of more than the equivalent of a further four months at an
equivalent rate of pay to her previous employment. In arriving at this estimate I have allowed
for employment for a longer period of six months but at a reduced rate of pay due to a reduced
number of shifts and/or shifts which attract penalty payments.
[63] As this period is less than the period since the dismissal this results in an amount of
compensation of four months pay. I will deduct 25% for contingencies due to the uncertainty
surrounding my estimate of the likely earnings if the Applicant had not been dismissed. I will
therefore Order the payment of three months or 13 weeks compensation. I consider it
[2013] FWC 5609
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appropriate that the amount be paid within 21 days. The Respondent should make appropriate
deduction for taxation.
[64] The evidence concerning the weekly earnings was unclear. The Respondent is to
provide the Applicant and FWC with advice as to what it believes to be the correct weekly
earnings as at the date of termination including superannuation and the corresponding total
amount payable in compensation before any deduction for taxation. This should be provided
by 15 August 2013. The Applicant shall respond to the Respondent and FWC as to whether or
not they accept this information. If they do not the Applicant should provide alternative
information and the basis for it by 22 August 2013. In the event that the matter is not able to
be resolved I will finalise the Order at a hearing at 9.30am on 27 August 2013.
COMMISSIONER
Appearances:
The parties represented themselves.
Hearing details:
2013
Melbourne
August 8
Printed by authority of the Commonwealth Government Printer
Price code C, PR540095
AL OF FAIR WORK OF FAIR AUSTRALIA,L
