1
Fair Work Act 2009
s.604—Appeal of decision
Kylie Jeffrey
v
IBM Australia Limited
(C2014/7304)
VICE PRESIDENT LAWLER
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER WILLIAMS SYDNEY, 22 JUNE 2015
Appeal – unfair dismissal – proper award of compensation – discretion to refuse to award
compensation.
[1] This is an appeal against a decision of Deputy President McCarthy1 finding that the
dismissal of the Appellant was harsh, unjust or unreasonable, but declining to order any
remedy.
[2] This matter was the subject of a substantive hearing and decision in relation to the
issue of permission to appeal. A Full Bench, headed by the President, granted permission to
appeal and issued substantial reasons for judgment that summarise the facts and identify a
number of arguable errors affecting the Deputy President’s decision.2
[3] The Deputy President found that the reason for the Appellant’s dismissal, namely that
she did not have the capacity to do her job for the foreseeable future, was not a valid reason.
The Deputy President continued:
“[111] … There may have been other reasons that influenced the decision to dismiss the
Applicant such as Mr Williams’ loss of faith and confidence in the Applicant.
A further reason could have been the uncooperativeness of the Applicant in previous
RTWP and especially endeavouring to include matters irrelevant to the RTWP for
other purposes. Another reason may have been one expressed by Mr Williams of the
amount of his time required to deal with issues involving the Applicant which was
detracting from his other duties and management of other staff. I had the impression
from the evidence as a whole, but unstated, that IBM had simply had enough and had
arrived at a point where the resources and effort devoted to the Applicant’s grievances
could not be justified. There was insufficient evidence for me to make a finding that
these other reasons either individually or as a whole established a valid reason for
dismissal.”3
[2015] FWCFB 4171
DECISION
E AUSTRALIA FairWork Commission
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[4] The Deputy President concluded that the dismissal of the Applicant was harsh, unjust,
or unreasonable. The Deputy President dealt with the issue of remedy in the following way.
“Remedy
[116] The FW Act provides in s.390 that:
(1) Subject to subsection (3), the FWC may order a person’s reinstatement,
or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair
dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
[117] The remedy or a remedy is thus a discretion to issue an order or to not issue an
order. There are a number of issues in this matter that are relevant to that
consideration.
Conduct of the Applicant
[118] The Applicant throughout the proceedings raised allegations and assertions
about Dr Ryan. I had made it clear near the beginning of proceedings that I would not
deal with any allegations of professional conduct. I had to repeatedly remind the
Applicant throughout the proceedings that the application I was dealing with was
related to her dismissal and not to other grievances she may have. Despite this it
appeared to me that another purpose the Applicant had in these proceedings was to use
it as a forum to criticise Dr Ryan. This was not only unfair to Dr Ryan but a deliberate
and regular ignoring of directions and advice I gave the Applicant throughout the
proceedings.
[119] It is often a difficult balance to ensure that an unrepresented Applicant has a
fair hearing without being unfair to the other side by too much help being given to the
Applicant. Indeed at one juncture I put a series of questions to Mr Williams whose
answers were important in my findings above. I asked those questions in an endeavour
to illustrate to the Applicant the type of questions she should be asking and the
specific issues that were important. I said as much to the Applicant after asking those
questions.
[120] Despite my advice and assistance the Applicant regularly appeared to ignore it
and continued to pursue what I can only regard as a vendetta against Dr Ryan. In case
there is any doubt I make no adverse findings about Dr Ryan’s credibility nor in any
other respect.
[121] I do not regard the Applicant’s conduct to be those of a naive person but rather
those of an intelligent and articulate person intent on creating a stage in which she had
decided she would vent her anger about Dr Ryan. The conduct of the Applicant during
proceedings and her use of the proceedings for that purpose and for other purposes I
regard as matters that weigh against an order of any type being issued.
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Accusations
[122] The Applicant repeatedly made very serious allegations and accusations about
others with little or no foundation. I will not traverse all of the accusations but the
following two examples should be sufficiently indicative.
[123] The first concerns an allegation by the Applicant that Dr Hall had “conspired”
against her. The Applicant sent an email to Dr Hall, and provided it to my Chambers
on 13 March 2013 which stated:
“Dear Dr Hall, it seems that you are worried about your professional integrity.
There is no need for me to present at the medical emergency department. I
guess I have no other option to produce this email to his Honour, which I’m
sure is self-explanatory, that you conspired with Dr Ryan without my consent
and then admitted to doing no wrongdoing”
[124] The Applicant was given repeated and clear opportunities to withdraw the
allegation. It was also suggested to the Applicant that she may have been careless with
the use of the word “conspired”. Despite the Applicant’s evidence that “I wouldn’t put
it [the allegation of conspiring] in those terms” and “I don’t like the word conspired”
and “Perhaps that wasn’t the right word to use” and “I perhaps used the wrong word in
that sentence structure” she refused to withdraw the accusation.
[125] The Applicant at one point responded petulantly by stating “Well if you want
me to withdraw it I’ll withdraw all of my evidence”. I endeavoured to explain to the
Applicant that IBM’s representative was entitled to ask her “whether the words were
careless, whether they were intentional, and whether you on reflection now wish to
withdraw the allegation you made” and during that explanation the Applicant
interrupted me stating “He always gets his way”. It seemed clear enough to me that the
Applicant was inferring that I was dealing with the matter in an unfair way by giving
IBM’s representative rulings that she viewed as being unfair to her. I note that the
IBM could have regularly objected to the advice, if not assistance, the Applicant was
receiving from me but they did not.
[126] Notwithstanding the opportunities for the Applicant to moderate her serious
accusations towards Dr Hall the Applicant eventually reaffirmed her accusation by
stating “Well I believe that she did conspire because why wouldn’t she be here to
defend herself?”. This also illustrated that the Applicant viewed the proceedings as
opportunity for purposes other than to dispute the fairness of her dismissal.
[127] The second example is that the Applicant viewed a comment by Mr Williams
that emails the Applicant had sent to him were “illogical and intemperate” as a
derogatory reference to the Applicant’s indigenous heritage. The Applicant’s
accusation arose out of Mr Williams witness statement for these proceedings.
Mr Williams stated that he viewed the emails that the Applicant sent to him on 13 and
14 August 2012 as “intemperate and illogical”. That description was hardly surprising
given the content of those emails.
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[128] Mr Williams evidenced that when he used the word intemperate “I meant that
in my opinion the email that was written to me was written more in response to an
emotion, as opposed to a reasoned thought process.”
[129] The Applicant in her evidence stated that she “felt that it [use of the word
intemperate] is a direct vitriol in regards to my Indigenous heritage. It was just a low
shot taken at me, and it’s not the first time that he’s done it.” I accept Mr Williams’
intent in using the word intemperate. I regard the Applicant’s view of Mr Williams’
intent as being fanciful and itself offensive.
[130] Despite the content of the emails and the accusations of Mr Williams being
disparaging about the Applicant’s heritage the Applicant during proceedings
apologised to Mr Williams. The apology was a generic one and made no reference to
the specific allegation which in my view was the most serious and clearly caused
offense to Mr Williams.
[131] There were other instances throughout the proceedings including (i) accusing
Mr Armstrong of being a liar (ii) referring to Dr Ryan as a bitch (iii) accusing IBM of
an impropriety through altering medical certificates.
[132] I consider that the Applicant improperly and unfairly endeavoured to use these
proceedings to besmirch others.
[133] Despite the Applicant’s propensity to make unfounded or unrealistic
allegations it was apparent she did not consider any of her own conduct may have
been improper. For example the Applicant tape recorded a consultation with Dr Hall
without Dr Hall’s knowledge.
[134] The Applicant was also regularly evasive especially during her cross-
examination. Mr Hooker had to regularly repeat questions to her and await lengthy
responses that were usually irrelevant to the question or far strayed from the issue
involved that it avoided the answer. It appeared to me that this was not inadvertence
on the part of the Applicant nor a lack of experience or understanding. Rather it
appeared to me that the Applicant improperly avoided answering relevant and fair
questions.
[135] In contrast and lest there be any doubt about the conduct throughout the
proceedings by either IBM’s witnesses or IBM’s representatives I make it clear that
I have no criticisms whatsoever. I also find that each of the witnesses of IBM were
honest, clear and forthright.
Amount of absences
[136] There was a significant amount of time that the Applicant was absent. The
absences included a long period of paid sick leave, substantial periods of unpaid leave
and a series of absences for which workers compensation was claimed. I do not
suggest that the absences were avoidable. The extent of these absences should have
been a cause for the Applicant to fully cooperate in any RTWPs. However the
evidence outlined above illustrates that the Applicant did not cooperate but rather
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frustrated efforts to have a reasonable programme for her return to work. This
influenced my decision not to issue an order.
Conclusion regarding remedy
[137] It is clear from the analysis of the evidence and my findings above that I find
that it would be inappropriate for the Applicant to be reinstated.
[138] I also do not consider that it is appropriate in all of the circumstances of this
case to issue an order for compensation.”4
[5] The earlier Full Bench held:
“[12] We consider that the appellant has established an arguable case that, in his
refusal to grant the remedy of compensation, the Deputy President’s decision was
attended by appealable error in the following respects:
(1) Although the respondent at the hearing at first instance mounted a
comprehensive case against the grant of the remedy of reinstatement which
made reference, directly or indirectly, to the three matters earlier identified
which were relied upon by the Deputy President to refuse a remedy, its case
against the grant of the remedy of compensation made no reference to those
matters. It simply asserted that it was not appropriate to award compensation,
and in the alternative submitted that if any compensation was awarded, the
amount should be assessed having regard to the appellant’s receipt of salary
continuance insurance payments. Neither party suggested that the Deputy
President had himself placed the appellant on notice that he intended to take
these matters into account in determining whether the grant of the remedy of
compensation was appropriate. In those circumstances, the appellant may have
been denied procedural fairness.
(2) The Deputy President’s consideration in respect of compensation did
not involve any assessment as to whether the appellant had suffered any
financial loss as a result of her unfair dismissal. As we read the submissions
made by the respondent at first instance, it did not dispute the appellant’s
contention that she had suffered financial loss as a result of her dismissal,
although it did submit that that loss was mitigated to a significant degree but
not wholly by the appellant’s receipt of salary continuance insurance payments.
In those circumstances the Deputy President may have erred by failing to take
into account a relevant consideration in the exercise of his discretion.
(3) In relation to the first two of the three matters relied upon by the
Deputy President in refusing to grant any remedy, whilst they were of obvious
relevance to the primary remedy of reinstatement (since they went to the
relationship between the appellant and certain persons who worked for the
respondent, and thus to the question of whether the restoration of a relationship
of trust and confidence was practicable), their connection to the remedy of
compensation is not readily apparent, and is certainly not explained in the
decision. The Deputy President may therefore have erred in the exercise of his
discretion by taking into account irrelevant considerations.
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[13] We emphasise that we have not reached any final conclusion that the Deputy
President erred in his refusal to grant the remedy of compensation, but only that we are
satisfied that there is an arguable case that he erred. We are satisfied that, insofar as
the appeal challenges the refusal of compensation, it attracts the public interest. The
first potential error identified above, because it involves a denial of procedural
fairness, is jurisdictional in nature. The second and third issues may give rise to a more
general consideration as to what matters may or may not be relevant to the exercise of
the discretion to award compensation. They may also indicate that the appellant, who
on the unchallenged finding of the Deputy President was unfairly dismissed, has
suffered a manifest injustice.
[14] In respect of the Deputy President’s refusal of reinstatement, we do not
consider that the appellant has demonstrated any arguable case of error or has
otherwise raised any issue that would attract the public interest. The decision in this
respect was responsive to the case presented by the respondent against reinstatement,
and so no issue of a denial of procedural fairness arises. The three matters relied upon
by the Deputy President which we have earlier identified were clearly relevant to the
remedy of reinstatement - the first two because, as already stated, they pertained to the
issue of trust and confidence, and the last because it went to the extent to which the
appellant may have contributed to the respondent’s decision to dismiss her.
[15] We are satisfied that the grant of permission to the appellant to appeal the
Deputy President’s decision to refuse to order the remedy of compensation is in the
public interest, and permission to appeal is granted in that respect. The hearing of the
appeal will occur before a reconstituted Full Bench. Directions will be made to require
the parties to file and serve written submissions addressing not only whether the
Deputy President erred in refusing to award compensation but also, in the event that
error is found, what the appropriate outcome should be upon a re-hearing of the
matter.
[16] We are not satisfied that the grant of permission to appeal in respect of the
Deputy President’s refusal of reinstatement is in the public interest. In that respect,
permission to appeal is refused in accordance with s.400(1) of the FW Act.”5
[6] Accordingly, this Full Bench is concerned only with the appeal against the Deputy
President’s decision to refuse to order the remedy of compensation.
[7] At the hearing of the appeal, the Respondent was not in a position to strongly advance
arguments against those arguable errors. We are satisfied that the arguable errors identified by
the Full Bench are established, for the reasons outlined by the Full Bench. We are satisfied
that the Deputy President erred in failing to make an order for compensation in favour of the
Appellant.
[8] It is reasonably clear from the Deputy President’s reasons that his Honour took the
view that the Appellant was disentitled, as a matter of discretion, from being awarded a
remedy because of her conduct, as a self-represented litigant, at the hearing and, in particular,
her attacks on Dr Ryan.
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[9] The Deputy President’s judgment of the Appellant was overly harsh. It is not disputed
by the Respondent that Dr Ryan had held herself out as an occupational physician at a time
when she did not in fact hold registration in that speciality. The Appellant was understandably
distressed by the Respondent’s reliance on a report produced by Dr Ryan, not only because of
her lack of formal qualification in Australia, but also because Dr Ryan’s opinions adverse to
the Appellant were based only on a review of other medical reports and without the benefit of
any examination of, or consultation with, the Appellant. Allowances must be made for self-
represented litigants who feel a genuine sense of grievance.
[10] Viewed from the perspective of the Appellant, her sense of grievance in relation to
Dr Ryan was undoubtedly genuine and not without some rational basis. The Deputy President
accepted as having occurred one of the incidences relied upon by the Appellant, when pubic
hair was left on her desk in a fashion that was manifestly deliberate. The Deputy President did
not make the findings in relation to many of the particulars of bullying and harassment relied
upon by the Appellant.
[11] It is undesirable for this Full Bench to attempt to make findings in relation to the
extent to which the Appellant’s approach and presentation were themselves the result of the
conduct of the Respondent that rendered the dismissal harsh, unjust or unreasonable. We do
not have the benefit of seeing the competing experts, and other witnesses, give their evidence.
We note that the Appellant relied upon specialist medical reports that supported her
contentions and liability has been accepted in relation to a salary continuance insurance policy
that she had provided to her when in employment with the Respondent and had maintained
after her dismissal. On the other hand, the Deputy President had clearly formed a view that
the IBM managers faced real difficulties in dealing with the Appellant and were certainly not
the malign figures portrayed by the Appellant (which does not equate to a finding that the
Respondent was blameless).
[12] The Deputy President also erred in placing adverse reliance on the Appellant’s
absences as a factor in favour of refusing to order a remedy. Most of those absences were
supported by medical certificates and were a product of the Appellant’s state of mental health
which, on her case, was the result of the Respondent’s treatment of her.
[13] Permission to appeal having been granted by the earlier Full Bench, and having
satisfied ourselves that the decision of the Deputy President is affected by error, the role of
this Full Bench is to conduct a re-hearing. Given the finding of the Deputy President that the
dismissal was harsh, unjust or reasonable, and the limited grant of permission to appeal, the
appeal proceeds as a rehearing and it falls to this Full Bench to determine the proper amount
of compensation that should be ordered in favour of the Appellant.
[14] The grant of a remedy for unfair dismissal is, relevantly for present purposes,
governed by ss.390 and 392 of the Fair Work Act 2009 (Cth) (the Act). Section 390 provides:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement,
or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair
dismissal (see Division 2) at the time of being dismissed; and
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(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an
application under section 394.
(3) The FWC must not order the payment of compensation to the person
unless:
(a) the FWC is satisfied that reinstatement of the person is
inappropriate; and
(b) the FWC considers an order for payment of compensation is
appropriate in all the circumstances of the case.”
[15] Section 392 provides:
“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.
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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.”
[16] Section 392(5) imposes a cap on the amount of compensation that can be ordered -
generally equivalent to six months of the employee’s total remuneration.
[17] Section 392 is concerned with compensating an employee who has been dismissed for
monetary loss. This is underscored by the express exclusion in s.392(4). In the first instance,
the task required by s.392 is essentially concerned with assessing the difference between the
amount of remuneration that the employee would have earned if they had not been unfairly
dismissed, and the amount or remuneration they have actually earned and are likely to earn,
subject to issues of mitigation.
[18] A methodology for determining the proper amount of compensation was discussed in
Ellawalla v Australia Postal Corporation6 and refined by the Full Bench in the well-known
decision in Sprigg v Paul’s Licensed Festival Supermarket7 (Sprigg). That methodology
involves the following steps:
Step 1 Estimate the remuneration the employee would have received, or have been
likely to have received, if the employer had not terminated the employment.
Step 2 Deduct moneys earned since termination. Workers compensation payments are
deducted but not social security payments. The failure of an applicant to
mitigate his or her loss may lead to a reduction in the amount of compensation
awarded.
Step 3 The remaining amount of compensation is discounted for contingencies.
Step 4 The impact of taxation is calculated to ensure that the employee receives the
actual amount he or she would have received if they had continued in their
employment.
Step 5 The legislative cap on compensation is applied.
[19] A Full Bench in Smith v Moore Paragon8 (Moore Paragon) at [32] noted the
desirability of applying the Sprigg approach, but cautioned that regard must always be had to
the words of the statute, and that an award of compensation in an amount yielded by a Sprigg
analysis must be “appropriate”:
“[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
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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)
[20] Sprigg and Moore Paragon were decided under earlier legislation; however, those
principles are equally applicable to an assessment of compensation under s.392 of the Act.
[21] There are difficulties in undertaking Step 1 of the Sprigg analysis in this case. In
particular, there are real difficulties in predicting how long the Appellant would have
remained in the employment of the Respondent if she had not been unfairly dismissed.
[22] The decision of the Full Bench in Iliadis v Rail Corporation of NSW9 (Iliadis) is also
relevant. In that case the Member at first instance had refused an application for an extension
of time by an employee who had suffered bullying and harassment, leaving her in a state
where even her own treating specialist concluded that she would never be fit to work again for
the employer. The Member at first instance took the view that the applicant’s own medical
evidence meant that the employee could never again perform the inherent requirements of the
job and that, accordingly, the dismissal could not be harsh, unjust or unreasonable. The Full
Bench referred to “the assumption which underlies [the] decision [at first instance], namely,
that the medical condition which rendered the appellant unfit for work in the respondent’s
business had been caused by the respondent”, and continued (at [8]):
“That assumption having been made, it seems to us that there was a possibility that
when all of the evidence was considered, the conclusion might be reached that the
termination of the appellant’s employment was harsh, unjust and/or unreasonable. It is
conceivable that there might be circumstances in which it would be unfair for an
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employer to take advantage of its own unlawful conduct to terminate an employee’s
employment. It is possible to construct extreme examples to illustrate the point, but
one example is probably sufficient. Take a case of physical assault by an employer
resulting in an incapacitating injury. In such a case termination of the employee’s
employment by reason of inability to work could, depending on the separation terms,
be unreasonable. It is of course not necessary that we make a finding in this case. It is
sufficient that there be a reasonable chance of such a finding. In our view there is
nothing in the Vice President’s conclusions which necessarily excludes the possibility
that the termination was harsh, unjust or unreasonable. The possibility of a finding to
that effect remains open.”
(emphasis added)
[23] The decision in Iliadis suggests that in making an assessment, for the purposes of a
Sprigg analysis, of how long an employee would have remained in employment if they had
not been unfairly dismissed, the period should not be reduced because of factors, such as
tension with managers or other staff, that are themselves the result of, for example, bullying
and harassment for which the employer is vicariously responsible.
[24] In the present case, this means we are concerned with how long the employee would
have remained in employment but for the treatment she received, at least some of which
amounted to bullying and harassment for which the employer is vicariously responsible.
[25] That becomes very problematic because of the absence of findings by the Deputy
President in relation to most of the Appellant’s claims of bullying and harassment, and is
compounded by the paucity of medical and other evidence going to the issue of how the
Appellant may have fared in her employment in the absence of any of the conduct that the
Appellant alleged as bullying and harassment.
[26] We are most reluctant to see this case remitted for a further hearing. That would be an
unfortunate outcome that would impose additional stress and costs on the parties that is out of
proportion to the amount at stake.
[27] The Appellant has indigenous heritage. She completed a tertiary degree and obtained
employment with Qantas in January 2009. In late 2009, the area in which the Appellant was
employed was outsourced to IBM. The Appellant’s employment transferred to IBM as part of
that process. The Appellant went on sick leave in September 2010 and, other than two short
periods when she returned to work, remained away from work until her dismissal in August
2012. It is tolerably clear that the Appellant was determined to pursue a career, whether with
IBM, or moving to a new employer at some point. The medical issues suffered by the
Appellant have harmed her prospects in that regard. On the other hand, it is clear that the
Appellant’s managers found her difficult to manage in a fashion that suggests that, even if the
Appellant had not been subject to the treatment she alleges, it is more likely than not that the
Appellant would not have remained as a long-term employee of the Respondent. It is
impossible to have any certainty around how long the Appellant would have remained
employed in those circumstances.
[28] In this case, the Appellant had prudently maintained a salary continuance insurance
policy. The Appellant made a claim under that policy, which claim was accepted by the
insurer. As a result, the Appellant has been receiving payments under the policy equivalent to
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75% of her salary at the time of dismissal. We are satisfied that, given the statutory purpose of
an award of compensation, these income protection insurance payments should be brought to
account in determining the amount of the Appellant’s monetary loss. In other words, the
Appellant was accruing a monetary loss at a rate of 25% of her salary each year.
[29] The Appellant has not earned a salary since her dismissal. We are satisfied that any
award of compensation should not be reduced because of an unreasonable failure by the
Appellant to mitigate her loss. The medical evidence provides a proper explanation in that
regard.
[30] Even when a proper allowance is made for contingencies, we are satisfied that an
amount of compensation that is “appropriate” is three months’ salary ($115,745 per annum
divided by 4 equals $28,936.25), less any tax deductions required by law to be made.
[31] For the reasons we have given, the orders of the Full Bench will be that:
1. The appeal is allowed.
2. The decision of the Deputy President declining to award a remedy of
compensation be set aside.
3. The Respondent is to pay to the Appellant, within 21 days of the date of this
decision, compensation in lieu of reinstatement in the amount of $28,936.25, less any
tax deductions required by law to be made.
[32] Orders to this effect will issue concurrently with this decision.
VICE PRESIDENT
Appearances:
Ms K Jeffrey, the Appellant, appeared for herself
Mr S Woodbury, Ashurst Australia, appeared for the Respondent
Hearing details:
2015
Sydney
24 March
FAIR WORK COM *** AUSTRALIA THE SEAL
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Final written submissions:
Appellant’s final submissions: 21 April 2015
Respondent’s final submissions: 4 June 2015
Appellant’s submissions in reply: 12 and 15 June 2015
Printed by authority of the Commonwealth Government Printer
Price code C, PR568565
1 [2014] FWC 8166.
2 [2015] FWCFB 397.
3 [2014] FWC 8166.
4 Ibid.
5 [2015] FWCFB 397.
6 Print S5109.
7 (1998) 88 IR 21.
8 (2004) 130 IR 446.
9 [2007] AIRCFB 1041.
