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Fair Work Act 2009
s.604—Appeal of decision
Bank of Sydney Ltd T/A Bank of Sydney
v
Pasqualina Repici
(C2015/4952)
DEPUTY PRESIDENT HAMILTON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER ROE
MELBOURNE, 20 NOVEMBER 2015
Appeal against decisions [[2015] FWC 4571], [[2015] FWC 4963] and Order PR569654 of
Commissioner Cribb at Melbourne on 8 July 2015 and 21 July 2015 in matter number
U2014/15399 – payment in lieu of notice – compensation.
[1] On 16 October 2015 we issued a decision in relation to an appeal by the Bank of
Sydney1. In relation to Commissioner Cribb’s second decision and the order2 we conclude as
follows:
‘The result of the appeal
[28] The Bank has demonstrated that Commissioner Cribb was in error when she
stated that she would take ‘take into account’ the payment in lieu of notice, and then
did not do so. She issued a decision and order which did not take this into account. In
our view it is in the public interest that permission to appeal be granted in order to
enable the parties to put submissions on whether the appeal should be granted in order
to maintain consistency between Commission decisions and orders, and other matters.
We grant permission to appeal in relation to this issue only.
[29] The notice of listing and directions for this appeal stated that the matter ‘was
listed for hearing concerning the issue of permission to appeal only’. Whether the
appeal should be granted and order that should be made as a result of permission to
appeal being granted is another matter.
[30] Ms Repici did not appear at the hearing. However, she is entitled to be given the
opportunity to put a case on the effect of the error we have identified on the order of
compensation, if any. We issue directions to give the Bank the opportunity to put a
case, and for her to reply to it.’
Submissions
1 [2015] FWCFB 6712.
2 [2015] FWC 4963] and Order PR569654.
[2015] FWCFB 7939
DECISION
E AUSTRALIA FairWork Commission
[2015] FWCFB 7939
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[2] On 16 October 2015 Directions were issued in relation to the filing of submissions.
The Bank of Sydney (the Bank) and Ms Repici filed their respective submissions and we have
taken these submissions into account. The Bank submitted that the payment ordered should be
reduced by the amount of notice, namely $3,581.613. Ms Repici submitted that she should not
be ‘further penalized for what the Bank has done’4 for various reasons relating to the merits of
the matter, such as that a reference was refused, and she was ‘dismissed on the spot’.5 The
Bank replied to those submissions on 16 November 2015 and we have taken those
submissions into account. It was agreed that the issue of remedy would be determined on the
basis of these written submissions.
Consideration
[3] We have decided that it is appropriate to take into account the payment in lieu of
notice, consistent with the submissions of the Bank. It is also consistent with the decision of
Commissioner Cribb, and other decisions including Jemal v ISS Australia6, Gleeson v
Blenners Transport7, Bradley Auberson v Clough Downer Joint Venture Construction Pty
Ltd8, and Anthony Davey v JR Bulk Liquid Transport9. We will therefore quash the order of
compensation and make an order of compensation ourselves.
[4] Reinstatement is not sought and by virtue of section 391 of the Fair Work Act 2009
(the Act), it is not appropriate. We agree with Commissioner Cribb’s conclusions in
paragraph 52.
[5] In the alternative we are required by section 392 of the Act to consider an order of
compensation in lieu of reinstatement.
[6] In Brett Haigh v Bradken Resources Pty Ltd T/A Bradken10 the Fair Work
Commission said:
[10] The frequently quoted case on compensation calculations is Sprigg v Paul
Licensed Festival Supermarket in which a Full Bench of the Australian Industrial
Relations Commission (AIRC) confirmed the following steps in determining
compensation under the unfair dismissal provisions of the Workplace Relations Act:
“1. Estimate the amount the employee would have received or would have
been likely to receive if the employment had not been terminated,
2. Deduct monies earned since termination,
3. Deductions for contingencies,
3 Submissions of the Bank of Sydney, 30 October 2015; Submissions in Reply of the Bank of Sydney, 16 November 2015.
4 Submissions of Ms Repici, 1 November 2015.
5 Ibid.
6 [2015] FWC 776 at 85 and 90.
7 [2013] FWC 3394 at 25.
8 [2015] FWC 1179 at 113.
9 [2014] FWC 9307 at 11.
10 [2014] FWCFB 236.
[2015] FWCFB 7939
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4. Calculate any impact of taxation,
5. Apply the legislative cap.”
[11] The legislation has been amended since that time by permitting a reduction in an
amount otherwise payable if an employee’s misconduct contributed to the employers
decision to dismiss. The Full Bench decision in Sprigg has also been the subject of
comment by other Full benches. In Smith v Moore Paragon a Full Bench of the AIRC
said:
“COMMENT IN RELATION TO THE GUIDELINES IN SPRIGG
[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 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]
[7] In relation to the factors we are required to have regard to we, with respect, adopt the
decision of Commissioner Cribb in relation to each of the factors set out sections 392 and 393
with one exception, remuneration earned.11 In relation to that we add the amount of pay in
11 Section 392(2)(c), Fair Work Act 2009
[2015] FWCFB 7939
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lieu of notice, or $3,581.61. The result is that the calculations regarding contingencies and
misconduct deductions need to be altered, namely the calculations in paragraphs 14-21 of
Commissioner Cribb’s decision on compensation. The provisional amount of $42,979.32
gross is reduced by the amount of payment in lieu of notice, or $3,581.61, so that it is
$39,397.71. The deduction of 20 per cent for contingencies reduces this amount by $7,879.54
to $31,518.17. The reduction of this amount by 40 per cent on account of misconduct
pursuant to section 392(3) of the Act reduces this amount by $12,607.27 to $18,910.90. This
amount is less than the compensation cap in section 392(5) of the Act.
[8] We do not in all the circumstances propose to add to or reduce this amount on account
of any additional consideration consistent with Brett Haigh v Bradken Resources Pty Ltd T/A
Bradken. It is appropriate to order the Bank to pay this amount to Ms Repici. We will quash
the order made and issue this order. An order to this effect is contained in PR574086.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code A, PR574080
THE FAIR WOOD COMMISSION THE
