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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Richard Bassanese
v
HPS Transport Pty Ltd
(U2014/12955)
DEPUTY PRESIDENT BARTEL ADELAIDE, 18 MARCH 2015
Termination of employment - remedy
[1] In a decision issued on 20 February 2015 (the substantive decision),1 I determined that
the dismissal of Mr Bassanese (the applicant) was harsh, unjust or unreasonable. HPS
Transport Pty Ltd (the employer) had argued that the dismissal was a case of genuine
redundancy. I found that the employer no longer required the applicant’s job to be performed
by anyone, but that the employer failed to comply with the consultation provisions of the
relevant modern award.
[2] I concluded that the re-employment of the applicant was not appropriate in the
circumstances and sought submissions from the parties on the issue of compensation.2
[3] The employer submitted that the compensation should reflect the period of time that
the applicant’s employment would have continued had the employer undertaken consultation
in accordance with the relevant modern award. This period was estimated to be of 1 - 2 weeks
duration.
[4] Unfortunately the applicant failed to address matters relevant to a consideration of the
appropriate amount of compensation as per s.392 of the Fair Work Act 2009 (the Act). As
such, there is no evidence before the Fair Work Commission (the Commission) as to any
earnings since dismissal or any attempts by the applicant to obtain employment. I am aware
that he has made a workers’ compensation claim in respect to injuries allegedly suffered
during the course of his employment, but I am unable to ascertain if and to what degree these
injuries have impacted on the applicant’s ability to perform work for which he is qualified.
[5] Section 392 of the Act provides as follows:
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DECISION
AUSTRALIA FairWork Commission
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“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:
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(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.”
[6] I consider that had the employer undertaken consultation as required, the period of the
applicant’s employment would have been extended. Assessing the extent of this period is
difficult as it is dependent on the nature of matters that may have been raised by the applicant,
if any. The absence of relevant information from the applicant in these proceedings, I have
estimated that the expected duration of employment, had appropriate consultation taken place,
to be an additional 2 - 3 weeks.
[7] The applicant was earning $21 per hour or $798 per week as at the date of dismissal.
Having regard to the expected duration of employment and taking into account all the
circumstances of the dismissal,3 including superannuation entitlements and annual leave
accrual over the anticipated period of employment, I consider that an appropriate amount of
compensation is $3,000 gross. An order for this amount is issued with this decision.
DEPUTY PRESIDENT
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1 [2015] FWC 1222
COMMISSION WORK FAIR 0 1 Las Dary
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2 Applicant’s submissions filed on 26 February 2015; Respondent’s submissions dated 4 March 2015.
3 See para [39] of the substantive decision.
