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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Miss Jayleen Kool
v
Adecco Industrial Pty Ltd T/A Adecco
(U2015/4381)
DEPUTY PRESIDENT ASBURY BRISBANE, 10 JUNE 2016
Application for relief from unfair dismissal - remedy - compensation.
1. Background
[1] In a Decision1 of 17 February 2016 (the Unfair Dismissal Decision), I found that Miss
Jayleen Kool had been dismissed from her employment with Adecco Industrial Pty Ltd T/A
Adecco (Adecco) and that her dismissal was unfair. I also determined in the Unfair Dismissal
Decision that Miss Kool should have a remedy in respect of her unfair dismissal. This
Decision concerns the remedy to be awarded to Ms Kool.
[2] At the time of the Unfair Dismissal Decision, the Commission was in receipt of some
evidence and submissions from Miss Kool regarding remedy. Adecco did not address the
issue of remedy in any of its material. Ms Kool was permitted to update her evidence in
relation to remedy by filing some additional material. Adecco did not seek to file any
evidence or material in relation to remedy, but did request to cross-examine Ms Kool. A
Hearing was convened for this purpose.
2. Legislation
[3] Given that I have made the necessary findings upon which a decision in relation to
remedy must be based, I turn to the question of the particular remedy to be granted. Miss
Kool seeks compensation. I am satisfied that reinstatement is not appropriate for the following
reasons. In the Unfair Dismissal Decision I accepted Miss Kool’s evidence that management
of Adecco had done little if anything to find another assignment for Ms Kool after her
assignment with Nestle ended or to support her when management of Nestle formed an
adverse view about her conduct, which was not supported by the evidence before the
Commission. At the time of Hearing in respect of remedy, Miss Kool had been successful in
obtaining alternative on-going employment through another labour hire company which had
resulted in her being employed by the host employer.
[4] I have also considered Ms Kool’s uncontested evidence in the unfair dismissal hearing
that she is a sole parent who requires regular and systematic employment to support her
children. Further, it is the case that Miss Kool is a New Zealand citizen and is ineligible for
[2016] FWC 2278
DECISION
E AUSTRALIA FairWork Commission
[2016] FWC 2278
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Government assistance in the event that she is not employed. In all of the circumstances it
would be inappropriate to reinstate Ms Kool to a position with Adecco where she would be
reliant on Adecco finding her a placement.
[5] I am satisfied that an order for the payment of compensation is appropriate in all of the
circumstances of the case. Section 392 of the Act provides as follows in relation to the
remedy of compensation:
“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.
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Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must
not exceed the lesser of:
(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.”
3. Consideration
[6] The approach to the calculation of compensation is set out in a decision of a Full
Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival
Supermarket2 and as discussed in Bowden v Ottrey Homes Cobram and District Retirement
Villages inc T/A Ottrey3.
3.1 Criteria for deciding amounts
3.1(a) the effect of the order on the viability on Adecco
[7] There is no evidence from Adecco that an award of compensation will affect the
viability of its business. I do not consider that this criterion is a matter of significant weight in
my determination.
3.1(b) Miss Kool’s length of service with Adecco
[8] Miss Kool had a period of service of two years and five months in her placement with
Nestle, which ended on 11 March 2015. During this time Miss Kool regularly worked 38
hours per week, with additional overtime. While not an extensive length of employment, the
evidence is that during this time Miss Kool was a productive and devoted employee. I
consider that this criterion is a matter that weighs in favour of the award of an amount of
compensation.
[2016] FWC 2278
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3.1(c) remuneration that Miss Kool would have received, or would have been likely to
receive, if Miss Kool had not been dismissed
[9] Miss Kool stated that during her employment with Adecco her weekly earnings before
tax were between $750 and $850 per week. A number of Miss Kool’s payslips are in evidence
from the weeks prior to her dismissal. The average of those payslips (before taxation is
applied) is $925 per week (rounded down to the nearest dollar).
[10] On the basis of the material before me I consider that Miss Kool would have
remained in employment for at least 12 months but for the dismissal. The evidence does not
establish that there were any performance concerns with Miss Kool. To the contrary, her
supervisor (an employee of Nestle) gave evidence in support of Miss Kool’s assertion that she
was hard working and dedicated to her position at the Company. Although Miss Kool’s
engagement was not permanent, she had approximately 2 years and five months of ongoing,
stable employment and a reasonable expectation that this would continue. Adecco did not
establish in the hearing before me that Miss Kool was employed under a contract of
employment which contained a specific provision to the effect that she could be removed
without reason from a client’s site.
[11] As I found in the Unfair Dismissal Decision this is not an instance where a client of a
labour hire firm decided it no longer required labour hire employees or that it no longer
required the services of Miss Kool due to some operational reason. Adecco was required to
assign further employees to the Nestle site following Miss Kool’s dismissal.4 Miss Kool was
removed from Nestle’s site and dismissed because of conclusions drawn about her conduct, in
circumstances where Adecco could not have been satisfied that the conclusions were valid or
soundly based.
[12] I calculate that but for the dismissal, Miss Kool would have received, or would have
likely received, remuneration in the amount of $48,100.
3.1(d) the efforts of Miss Kool to mitigate her loss
[13] Miss Kool has given evidence regarding her attempts following her dismissal to find
alternative employment. Those attempts commenced almost immediately after her dismissal
and Miss Kool was not assisted in any material way by Adecco, notwithstanding that various
managers of Adecco told her that she would be provided with assistance. At the time of
Hearing, Miss Kool had been successful in obtaining stable employment with the assistance
of another recruitment or labour hire agency. That initially temporary assignment was
subsequently made a permanent direct engagement with that recruitment agency’s client. This
occurred approximately six months after Miss Kool’s dismissal. I consider that Miss Kool has
made reasonable efforts to mitigate her loss.
3.1(e) the amount of any remuneration earned by Miss Kool since dismissal and
making of the order for compensation
[14] Following her dismissal, Miss Kool was successful in gaining some work for which
she received earnings. A Hearing in respect of remedy was held on 7 April 2016. This is after
the 12 months which I consider Miss Kool was likely to have remained in employment with
Adecco following her dismissal.
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[15] On the basis of the material before me, I calculate Miss Kool’s remuneration earned
following her dismissal to be a total of $22,293.98.
3.1(f) the amount of any income reasonably likely to be so earned by Miss Kool
during the period between the making of the order for compensation and the actual
compensation
[16] Given that my Order for compensation will be made after the period that I have found
Miss Kool would have likely remained in employment, this criterion does not affect my
ultimate conclusions in respect of compensation.
3.1 (g) any other matter that the FWC considers relevant
[17] In McCulloch, a Full Bench of the Commission stated:
“It is important to appreciate that a deduction for contingencies is applied to
prospective losses, that is loss occasioned after the date of the Hearing:
“...A discount for contingencies is a means of taking account of the various
probabilities that might otherwise affect earning capacity. At the time of
hearing any such impact on an applicant’s earning capacity between the date
of termination and the hearing will be known. It will not be a matter of
assessing prospective probabilities but of a making a finding on the basis of
whether the applicant’s earning capacity has in fact been affected during the
relevant period.””5
[18] Given my finding that Miss Kool would have remained in employment for a further
period of 12 months and that I am able to find what Miss Kool’s actual earnings were during
that period, no occasion arises to consider contingencies.
[19] I do not consider there are any other relevant matters to be taken into account in my
assessment of an award of compensation.
3.2 Misconduct reduces amount and Shock, distress etc. disregarded
[20] I make no deduction for misconduct etc. given that I am not satisfied that Miss Kool
engaged in misconduct. While I have taken into account the personal circumstances of Miss
Kool, the amount ordered does not include any amount in respect of compensation for shock,
distress or humiliation, or other analogous hurt, caused to Miss Kool as a result of her unfair
dismissal by Adecco.
3.2 Compensation Cap
[21] Miss Kool’s loss, taking into account these findings, is $25,806.02. The compensation
cap in this matter is $24,050.00 (26 week x $925 per week). Miss Kool’s loss exceeds the
compensation cap. I award Miss Kool the maximum compensation under the Act.
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4. Conclusion
[22] I conclude as follows:
1. An order for the payment of compensation would not affect the viability of Adecco’s
business;
2. While not extensive, the length of Miss Kool’s employment with Adecco favours the
making of an award for compensation and I make no deduction because of it;
3. But for the dismissal, Miss Kool would have likely received $48,100 in remuneration;
4. I make no deduction for contingencies;
5. I make no deduction for failing to mitigate loss;
6. I deduct $22,293.98 that Miss Kool has earned since her dismissal;
7. I make no deduction for income likely to be earned during the period between the
making of my order and the actual compensation;
8. This leaves an indicative amount of compensation of $25,806.02;
9. I make no deduction in respect of misconduct and have not included any amount in
respect of shock etc;
10. I apply the compensation cap, which leaves an amount of $24,050.00.
[23] I have taken into account all of the circumstances of this matter and consider it is
appropriate that I order that Adecco pay Miss Kool an amount of compensation in lieu of
reinstatement in the amount of $24,050.00, less applicable tax. I Order that this amount be
paid within 14 days of the date of this Decision. An Order to this effect will be issued.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code A, PR578951
1 Kool v Adecco Industrial Pty Ltd T/A Adecco [2016] FWC 925.
2 (1998) 88 IR 21.
3 [2013] FWCFB 431.
4 See Jayleen Kool v Adeeco Industrial Pty Ltd [2016] FWC 925 at [62].
5 Ibid at [21].
ORK COMMISSION AUSTRALIA THE SEAS OF FAIR
