1
Fair Work Act 2009
s.604 - Appeal of decisions
Double N Equipment Hire Pty Ltd t/a A1 Distributions
v
Alan Humphries
(C2016/5287)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER HARPER-GREENWELL SYDNEY, 21 DECEMBER 2016
Appeal against decision [2016] FWC 5927 of Commissioner Platt at Adelaide on 22 August
2016 in matter number U2016/5951.
Introduction
[1] Double N Equipment Hire Pty Ltd t/a A1 Distributions (A1 Distributions) has applied
for permission to appeal and appealed a decision of Commissioner Platt issued on 22 August
20161 (Decision). In the Decision, the Commissioner found that A1 Distributions’ summary
dismissal of Mr Alan Humphries on 29 March 2016 for serious misconduct was harsh, unjust
and unreasonable, and ordered it to pay Mr Humphries compensation in the amount of
$32,305.00 as a remedy. A separate order was issued to give effect to the Decision on 22
August 20162 (Order).
[2] The grounds of appeal contained in A1 Distributions’ notice of appeal were as
follows:
1. The learned Commissioner erred in his calculation of any compensation
payable by failing to take into account the Respondent’s evidence that the
Applicant was in receipt of workers compensation payments at all relevant
times.
2. The award of compensation was excessive.
3. The learned Commissioner placed undue weight and emphasis on the apparent
contents of the relevant parcel rather than noting its direction to be treated by
the Applicant as ‘dangerous goods’ regardless of its content.
4. The Applicant’s conduct did justify summary dismissal.
1 [2016] FWC 5927
2 PR584520
[2016] FWCFB 7206
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 7206
2
SIGNIFICANT ERRORS OF FACT
5. The learned Commissioner erred in not finding the Applicant had been in
receipt of income in the form of weekly payments of compensation since the
termination of his employment by the Respondent.
6. The learned Commissioner erred in his acceptance of the Applicant’s
uncorroborated evidence in light of the Respondent’s evidence in its entirety.
[3] It may be seen that grounds 3, 4 and 6 involve a challenge to the Commissioner’s
finding that Mr Humphries’ dismissal was harsh, unjust and unreasonable, and grounds 1, 2
and 5 challenge in the alternative the Commissioner’s quantification of the compensation to
be paid to Mr Humphries.
[4] The appeal was one to which s.400(1) of the Fair Work Act 2009 (FW Act) applied.
Section 400(1) provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a
decision made by the FWC under this Part unless the FWC considers that it is in the
public interest to do so.
[5] Accordingly it was necessary for A1 Distributions to demonstrate that it was in the
public interest that permission to appeal be granted. Its notice of appeal identified only the
following matter as attracting the public interest:
“By failing to make an allowance for the workers compensation payments received by
the Applicant, the Commissioner has permitted the worker essentially to “double-dip”.
It is therefore in the public interest to grant permission for the appeal to ensure the
Court process is not used by parties to effectively recover twice or benefit to the
detriment of the other party.”
[6] No public interest consideration was identified as relevant to those grounds which
were concerned with the finding that the dismissal was unfair - that is, grounds 3, 4 and 6.
[7] The issue of permission to appeal was the subject of a preliminary hearing before a
differently constituted Full Bench (Hatcher VP, Clancy DP and Cirkovic C) on 10 October
2016. On 28 October 2016 the Full Bench informed the parties that it had determined that it
had decided to grant permission to appeal in respect of grounds 1, 2 and 5, and that
permission to appeal was otherwise refused. This decision was made on the basis that grounds
1, 2 and 5 were arguable and the nature of the errors alleged meant that it was in the public
interest to grant permission to appeal in respect of those grounds, but no reason was advanced
by A1 Distributions or was identifiable as to why permission to appeal should be granted in
relation to grounds 3,4 and 6.
[8] Pursuant to the limited grant of permission to appeal, A1 Distributions’ appeal against
the compensation amount was heard before us on 12 December 2016.
The Decision
[2016] FWCFB 7206
3
[9] The Commissioner’s factual findings in the Decision record three matters of relevance
to the assessment of compensation:
Mr Humphries commenced employment with A1 Distributions as a linehaul truck
driver in December 20103;
at the time of his dismissal he received a wage of $1775.00 per week4; and
in September 2015 he injured his shoulder at work and was absent from work
because of this injury until 21 March 2016.5
[10] Having found that Mr Humphries’ dismissal was unfair, the Commissioner firstly
considered whether reinstatement was the appropriate remedy. He recorded that Mr
Humphries did not seek reinstatement, and that he was satisfied that it was not appropriate to
order reinstatement. We note that neither party challenged that finding in the appeal.
[11] The Commissioner then turned to consideration of the remedy of compensation, and
took the approach of dealing with each matter required to be dealt with in s.392(2) in turn and
assessing compensation in accordance with the approach taken in Sprigg v Paul’s Licensed
Festival Supermarket.6 In accordance with that approach the Commissioner first found that,
for the purpose of s.392(2)(a), there was no evidence that any order for compensation would
affect the viability of A1 Distributions, and then in relation to s.392(2)(b) took into account
that Mr Humphries’ length of service was five years and three months. In relation to
s.392(2)(c), which concerned “the remuneration that the person would have received, or
would have been likely to receive, if the person had not been dismissed”, the Commissioner’s
conclusions were as follows:
“[85] Whilst prior to the dismissal Mr Humphries had been verbally counselled in
relation to two other minor matters, I do not believe these would have impacted his on-
going employment had the dismissal not occurred.
[86] Mr Humphries asserted his financial circumstances required him to work. This
does not appear to be in dispute. Mr Humphries stated he had intended to work for
another 3 years before retiring.
[87] In the circumstances I believe it is reasonable to assess compensation in this
matter on the basis that Mr Humphries would, on the balance of probabilities, have
remained in employment for a further period of 2 years, however I discount this by
50% as it is possible that Mr Humphries may have ceased work earlier due to ill heath,
capacity, dismissal or other reasons. This arises from the length and nature of Mr
Humphries employment, his work performance, age and what I know of his injury.”
[12] Under s.392(2)(d) (mitigation of loss), the Commissioner found that Mr Humphries
had “actively sought alternative employment without success”.7 Under s.392(2)(e) and (f)
3 Decision at [10]
4 Decision at [3]
5 Decision at [11]
6 Print R0235, (1998) 88 IR 21
7 Decision at [88]
[2016] FWCFB 7206
4
(“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
“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”) the
Commissioner found:
“[89] Mr Humphries was in receipt of workers compensation payments at the 100%
level for six months prior to his dismissal. In the absence of his return to work Mr
Humphries would be entitled to an additional six months payments at 100% of his
earnings and then payments at 80% for an additional 12 months. These payments must
be considered as income, however it is not guaranteed that they will be received, on
that basis I have discounted the workers compensation income by 50%.”
[13] The Commissioner then under s.392(2)(g) took into account that Mr Humphries was
not paid the five weeks’ notice to which he was entitled on termination. His final conclusions
were as follows (footnotes omitted):
“[92] The maximum compensation limit in this case would be the lesser of 26 weeks
remuneration or half the high income threshold immediately before the dismissal. The
amount of compensation awarded is less than this limit.
[93] Taxation is to be paid on the amount determined.
[94] I believe that the compensation confirmed below is appropriate having regard to
all of the circumstances of this matter and the considerations specified by the Act.
[95] I award compensation in the amount of $32,305.00.”
[14] The calculation used to arrive at the amount of $32,305.00 appears to have been as
follows:
(1) Mr Humphries would have been employed for a further 12 months if he had
not been dismissed. The starting point of the calculation was therefore 52
weeks x $1,775.00 (the weekly wage at the time of dismissal) = $92,300.00.
(2) Deducted from this was an amount of $59,995.00 calculated as follows:
The 26 weeks @ 100% of 1,775 per week = $46,150.00
52 weeks @ 80% of 1,775 per week = $73,840.00
Subtotal = $119,990.00
Reduce by 50% = $59,995.00
(3) $92,300.00 less $59,995.00 equals $32,305.00. This is less than the cap on
compensation under s.392(5), which is $46,150.00 (26 x $1,775.00), and
therefore is the compensation amount.
The Appeal - consideration
[15] Section 392 of the FW Act relevantly provides as follows:
[2016] FWCFB 7206
5
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.
…
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
[2016] FWCFB 7206
6
(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.
[16] The well-established approach to the assessment of compensation under s.392 of the
FW Act, taking into account the matters specified in s.392(2), is to apply the “Sprigg
formula” derived from the Australian Industrial Relations Commission Full Bench decision in
Sprigg v Paul Licensed Festival Supermarket.8 This approach was articulated in the context of
the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages9. Under that
approach, the first step to be taken in assessing compensation is to consider s.392(2)(c) - that
is, to determine what the applicant would have received, or would have been likely to receive,
if the person had not been dismissed. In Bowden this was described in the following way:
“[33] The first step in this process - the assessment of remuneration lost - is a necessary
element in determining an amount to be ordered in lieu of reinstatement. Such an
assessment is often difficult, but it must be done. As the Full Bench observed in
Sprigg:
‘... we acknowledge that there is a speculative element involved in all such
assessments. We believe it is a necessary step by virtue of the requirement of
s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to
most assessments of compensation or damages in courts of law.’
[34] Lost remuneration is usually calculated by estimating how long the employee
would have remained in the relevant employment but for the termination of their
employment. We refer to this period as the ‘anticipated period of employment’...”
[17] The identification of this starting point amount “necessarily involves assessments as to
future events that will often be problematic”10. Once this first step has been undertaken,
various adjustments are made in accordance with s.392 and the formula for matters including
monies earned since dismissal, contingencies, any reduction on account of the employee’s
misconduct and the application of the cap of six months’ pay. This approach is however
subject to the overarching requirement to ensure that the level of compensation is in an
amount that is considered appropriate having regard to all the circumstances of the case.11
[18] In this case, the critical factual consideration relevant to the assessment of
compensation was that, having been on workers’ compensation benefits for a period of about
six months prior to 21 March 2016 because of a shoulder injury, Mr Humphries then suffered
a re-injury upon his return to work on 21 March 2016 and prior to his dismissal on 29 March
8 Print R0235, (1998) 88 IR 21
9 [2013] FWCFB 431; 229 IR 6
10 Smith v Moore Paragon Australia Ltd PR942856, [2004] AIRC 57; (2004) 130 IR 446 at [32]
11 Ibid
[2016] FWCFB 7206
7
2016. This caused him to go back on workers’ compensation benefits, and he remained on
such benefits at the time of the hearing before the Commissioner. The incapacity caused by
this re-injury was necessarily determinative of Mr Humphries’ future earnings capacity,
whether he was dismissed or not.
[19] We consider that the Commissioner failed adequately to take account of this factual
situation, and this caused him, with respect, to depart from the well-established approach we
have described and to err in his assessment of compensation in the following respects:
(1) In determining, for the purpose of s.392(2)(c), the remuneration amount Mr
Humphries would have received or would have been likely to receive had he
not been dismissed, the Commissioner failed to proceed on the basis that Mr
Humphries would in any event have still been on workers’ compensation
benefits because of his injury and would have remained so unless he became fit
for a full or partial resumption of his duties. To the extent that Mr Humphries
would have remained employed for a further 12 months, in the absence of
medical evidence demonstrating that a return to work was likely, the amount of
remuneration for the purpose of s.392(2)(c) (or Step 1 in the Sprigg formula)
should have been calculated on the basis of the workers’ compensation benefits
he had received or would receive, not his weekly wage at the time of dismissal.
It was common ground that under s.39 of the Return to Work Act 2014 (SA)
(RTW Act), Mr Humphries was entitled to 100% of his normal wages for the
first 12 months off work and 80% thereafter. Taking into account the first six
months of injury prior to 21 March 2016, that meant that Mr Humphries would
have received the 80% amount from about September 2016. The
Commissioner over-estimated the starting point amount by calculating the
whole period of anticipated employment using the full weekly wage.
(2) In relation to s.392(2)(e), the amount of remuneration which Mr Humphries
had received from the date of his dismissal to the date of the Order (or at least
to the date of the hearing) was a known or ascertainable amount. It consisted of
the actual amount of the workers’ compensation payments which Mr
Humphries had received over that period. However the Commissioner, in
considering s.392(2)(e) and (f) in a “rolled-up fashion”, made the past workers’
compensation payments as well as the likely future payments subject to a
contingency factor of 50%. While there was a logical basis to subject future
payments to a contingency factor, there was no basis to subject the past
payments to any such contingency factor because it was known that they had
actually been paid. This meant that the deduction from the starting point figure
required under s.392(2)(e) was under-estimated.
(3) In relation to s.392(2)(e) and (f), the Commissioner calculated the
remuneration that Mr Humphries had received or would receive by reference to
workers’ compensation payments at 100% of normal wages for six months and
80% of normal wages for a further 12 months - that is, he assessed it over a
period of 18 months. This was inconsistent with the 12 months estimate of
further employment under s.392(2)(c). As stated by the Full Bench in Ellawala
v Australian Postal Corporation12 (cited with approval in Bowden13):
12 Print S5109, [2000] AIRC 1151
[2016] FWCFB 7206
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“Monies earned after the end of the ‘anticipated period of employment’
… are not deducted. This is because the calculation is intended to put
the applicant in the financial position he or she would have been in but
for the termination of their employment.”
[20] We therefore consider that the Decision was attended by appealable error.
Accordingly, permission to appeal having been granted, we order that:
(1) That part of the Decision concerned with the assessment and determination of
compensation is quashed.
(2) The Order is quashed.
Re-determination of compensation amount
[21] It remains necessary to re-determine the amount of compensation to be awarded to Mr
Humphries for his unfair dismissal. We propose to undertake that task ourselves rather than
remitting the matter to a single member of the Commission. We note at the outset that it was
not in dispute that it was appropriate for an order for compensation to be made.
[22] We determined at the hearing to admit further evidence adduced by each party. A1
Distributions relied upon an affidavit sworn by Ms Tracey Anne Kerrigan, a solicitor, on 4
November 2016, which annexed a number of documents. Mr Humphries relied upon a further
witness statement made by himself on 23 November 2016, which also has a number of
documents annexed, and a witness statement made by his wife, Ms Lizabeth Humphries, on
the same date. The matters which appear to us to be relevant arising from this additional
evidence are as follows:
A medical report of Dr Josh Munn, a Consultant Occupational Physician, dated 13
October 2016, assessed that Mr Humphries would be able to return to truck
driving duties at an indeterminate time, but that he would have some difficulty
with associated tasks “such as forceful pushing and pulling during loading or
unloading or removing and replacing gates”. He also referred to “significant
practical issues with a return to work”. He noted that Mr Humphries was aged 66,
was around retirement age and was a smoker.
In correspondence dated 18 November 2016, Dr Nicholas Wallwork, an
Orthopaedic Surgeon, noted that Mr Humphries wished to return to truck driving
but said “...the physical nature of this and his recurrent history of injuries will
inhibit his ability to obtain this form of employment and maintain it in a
sustainable fashion” and recommended he avoid employment of this type.
However he said that if Mr Humphries undertook surgery on his shoulder, “I
believe he would have increased capacity and hence a return to his pre-injury
role. The probability of achieving this improvement I would rate at 60%”.
Mr Humphries said that he was currently receiving 80% of his ordinary pay. He
had been advised that he could return to work for modified duties, but was not yet
13 [2013] FWCFB 431 at [24]; (2013) 229 IR 6
[2016] FWCFB 7206
9
able to return to work at full capacity. He noted that Dr Wallwork had
recommended that he undergo surgery. He said he could not afford to retire, and
would not have stopped working for A1 Distributions because his financial
position would not have allowed it.
Mrs Humphries confirmed that the financial position of Mr Humphries was poor
and that he had always intended to work until he was 70. She said “When he was
fired he went looking for other jobs but he could not do any of them with his
shoulder at the moment” and “Alan is still considering whether to have more
surgery. He is concerned about complications because of his age but he also
wants the surgery so he can go back to work”.
It appears from Mr Humphries’ payment records that his weekly earnings were
$1820.00.
[23] It is also necessary to pay some attention to the provisions of the RTW Act, because
they are relevant to assessing what Mr Humphries future income-earning prospects are. We
have already referred to the amounts of compensation Mr Humphries is liable to receive
because of his injury. In addition to the following rights and obligations under the RTW Act
are relevant:
Section 18(1) obliges the pre-injury employer to provide suitable employment for
an injured worker for which the worker is fit, which must be as far as reasonably
practicable the same and or equivalent to the pre-injury employment.
Section 18(2) provides that s.18(1) does not apply where it is not reasonably
practicable for employment to be provided, the worker has left the employment of
the employer before the commencement of the incapacity for work, the worker
terminated the employment after the commencement of the incapacity for work,
or new or other employment options have been agreed between the worker, the
employer and the Return to Work Corporation of South Australia. Importantly,
there is no exclusion from the obligation in s.18(1) where the employer terminates
the employment after the commencement of the incapacity for work - a matter to
which we will return.
Section 18(3) provides that where, among other things, the injured worker seeking
re-employment must give written notice to the employer that he or she is ready,
willing and able to return to work and provides information about the type of
work the worker is performing, and the employer fails within a reasonable time to
provide suitable employment, the worker may make an application under s.18(5)
to the South Australian Employment Tribunal (Tribunal) for an order requiring
the employer to provide employment.
Section 20 requires that an employer must not terminate an injured worker’s
employment without first giving the worker and the Return to Work Corporation
of South Australia at least 28 days’ notice of the proposed termination (subject to
certain exceptions which are not presently relevant).
Under s.39(3), the worker’s entitlement to weekly compensation ceases at the end
of 104 weeks from the date on which the incapacity for work first occurs.
[2016] FWCFB 7206
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[24] Of critical importance is that the obligation on the employer in s.18(1) to provide
suitable employment, and the right of the employee to seek an order from the Tribunal under
s.18(5) if such suitable employment is not provided upon the provision of written notice under
s.18(3), survives any dismissal of employee after the commencement of the incapacity for
work. This was confirmed by the Tribunal (Deputy President Judge PD Hannon) in Walmsley
v Crown Equipment Pty Ltd14, which said (footnote omitted):
“[98] The question arose during the course of submissions as to whether, assuming no
invalidity on constitutional grounds, s 18 of the RTW Act empowered the Tribunal to
order that an employer provide suitable employment to a worker who had been
dismissed after the compensable injury and before invoking the s 18 jurisdiction. Each
of counsel for the applicant, the Attorney-General and the Corporation contended that
the Tribunal had such power, and that the provision applied whether or not the worker
remained in employment or had been dismissed.
[99] The position adopted by counsel for Crown, in raising the constitutional issue of
inconsistency with s 394 of the FW Act, necessarily assumed that s 18 of the RTW
Act purported to confer power on the Tribunal to make an order for re-employment of
a dismissed worker. However, as I understood its submissions, Crown contended in
the alternative that if s 18 was valid, it did not allow for an order for re-employment of
a dismissed worker, and was intended to apply only to a worker who had remained in
employment since the relevant injury.
[100] In my view the RTW Act contemplates that the remedy under s 18 is available to
a worker whether or not that worker has been dismissed from his or her employment
subsequent to the compensable injury. The remedy is available to a “worker” as
against an “employer”. Under s 4, both “worker” and “employer” are defined to
include a “former worker” and a “former employer”. There is nothing in s 18 to
suggest that this extended meaning should not apply in that jurisdiction. Further, as
observed above, s 20(1) of the RTW Act, a provision in Part 2 Division 3 in which s
18 appears, contemplates that an injured worker may be dismissed lawfully with
appropriate notice. There is no indication in the RTW Act that any such dismissal will
result in the s 18 remedy no longer being available to the dismissed worker.”
[25] We will assess compensation having regard to these matters.
Remuneration that would have been received if the dismissal had not occurred (s.392(2)(c))
[26] We consider that, had he not been dismissed, Mr Humphries would have been
employed by A1 Distributions for at least another 2 years. We accept that his desire had been
to continue to work for A1 Distributions for another 3 years, but we consider his age and his
injury would probably have caused the employment to end sooner than that.
[27] The income that Mr Humphries has received since his dismissal to the date of this
decision consists, as earlier stated, of his workers’ compensation payments - presumably paid
14 [2016] SAET 4
[2016] FWCFB 7206
11
by reference to his weekly income of $1,815.00 (although the precise figure is not clearly
ascertainable on the material before us. He was paid at 100% of weekly income until
September 2016, and at 80% since that time. The income he would have earned over the same
period had he not been dismissed would have been the same.
[28] Mr Humphries would have continued to be paid at 80% of his former weekly earnings
until the 104 weeks of weekly compensation ceased in about September 2017 unless he
recovered sufficiently to return to work at his full former rate of pay. On the medical evidence
before us there was some prospect that that would have occurred, but only if Mr Humphries
underwent the surgery recommended by Dr Wallwork. Mr Humphries has not decided to
undergo such surgery, so we can only assess that there is a 50% prospect that he would have
done so had he not been dismissed. If he did, there is a 60% chance the surgery would be
successful and he would be able to return to pre-injury duties and earn his full weekly wage.
Allowing for recovery, the earliest time Mr Humphries could have returned to work if the
surgery occurred and was successful would be about March 2017, one year on from the date
of his dismissal. That makes an overall chance of 30% of a return to work at the pre-injury
rate for the last 12 months of the 2-year period. That represented a 30% chance of receiving
an additional 20% remuneration in the period March-September 2017, and a 30% chance of
receiving the whole amount of $1820 from September 2017 until March 2018. For the last six
months period, if there had not been a return to work, Mr Humphries might have received
social security benefits or lump sum compensation, but we do not propose to take this into
account for the purpose of the calculation.
[29] The amount Mr Humphries would have earned but for the dismissal may therefore be
calculated as follows:
26 x $1820 = $47,320.00
52 x $1456 (80% x $1820) = $75,712.00
30% x 26 x $364 (20% x $1820) = $2,839.20
30% x 26 x $1820 = $14,196.00
TOTAL = $140,067.20
[30] Thus the “starting point” amount is $140,067.20
Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f)
and (g))
[31] Remuneration earned from the date of dismissal to the date of any compensation order
is required to be taken into account under s.392(2)(e). Remuneration reasonably likely to be
earned from the date of any compensation order to the date the compensation is paid is to be
taken into account under s.392(2)(f). Any remuneration likely to be earned after that date to
the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is,
we consider, a relevant amount to be taken into account under s.392(2)(g) in accordance with
the Sprigg formula. This would include any future workers’ compensation payments likely to
be made.
[32] The unusual but critical feature of this case is that it is not possible to identify any
basis upon which Mr Humphries’ dismissal could have affected the remuneration he has and
is likely to receive in the future over the period of anticipated employment. Having suffered a
re-injury to his shoulder, his income over the 2-year period of anticipated employment was
[2016] FWCFB 7206
12
determinable by reference to his rights under the RTW Act, which were not as explained
affected by his dismissal. The workers’ compensation payments he has actually received since
his dismissal to date are the same as he would have received had he not been dismissed.
Likewise there is no basis to conclude that Mr Humphries’ future rights to workers’
compensation payments, and his future prospects of a return to work at his pre-injury rate of
pay, were in any way affected by his dismissal. He remains in the same position by reason of
his injury.
[33] In mathematical terms, that means the actual and likely income of Mr Humphries in
the two-year period from the date of his dismissal would be the same as the amount calculated
for the purpose of s.392(2)(c) - $140,067.20. That amount is deducted from the starting point
amount and leaves zero compensation.
Length of service (s.392(2)(b)) and other matters (s.392(2)(g))
[34] We note that in the Decision the Commissioner found that Mr Humphries’ was denied
five weeks’ pay in lieu of notice because he was summarily dismissed for serious misconduct
which he determined had not actually occurred.15 We consider that this is a matter connected
to Mr Humphries’s length of service and is therefore to be taken into account under
s.392(2)(b), and/or is a relevant matter under s.392(2)(g). We consider that Mr Humphries
should be compensated for this loss which he suffered because of his unfair dismissal. Five
weeks’ pay at $1,820.00 per week gives a total of $9,100.00. We will not attempt to assess
this amount net of taxation, but simply require this amount to be paid subject to any deduction
of taxation required by law.
Viability (s.392(2)(a))
[35] An order for compensation in the amount of $9,100.00 would not affect the viability of
A1 Distributions.
Mitigation efforts (s.392(2)(d))
[36] We agree with the Commissioner that Mr Humphries has made reasonable efforts to
mitigate his loss by seeking alternative employment.16 There will be no adjustment on this
score.
Misconduct (s.392(3))
[37] Based on the findings of the Commissioner, Mr Humphries did not commit any
misconduct requiring a deduction under s.393(3).
Compensation cap (s.392(5))
[38] The amount of compensation proposed is below the compensation cap.
Instalments (s.393)
15 Decision at [90]
16 Decision at [88]
[2016] FWCFB 7206
13
[39] We do not consider that there is any reason for compensation to be made by way of
instalments.
Conclusion
[40] The amount of compensation which is derived from the above considerations is
$9,100.00, less deduction of any tax as required by law. We consider that is an appropriate
amount of compensation in all the circumstances. A separate order will be issued giving effect
to this conclusion.
VICE PRESIDENT
Appearances:
S. Richter of counsel for A1 Distributions.
D. Fabbro of counsel and P. Botros solicitor for A. Humphries.
Hearing details:
2016.
Melbourne:
10 October and 12 December.
Printed by authority of the Commonwealth Government Printer
Price code C, PR586203
OF THE FAIR WORK MISSION THE
