1
Fair Work Act 2009
s.394—Unfair dismissal
Ellie Wood
v
Gunbalanya Sports and Social Club
(U2017/9023)
COMMISSIONER BISSETT MELBOURNE, 6 MARCH 2018
Application for an unfair dismissal remedy – compensation awarded.
[1] On 22 December 2017 I issued a decision1 in which I found that Ms Ellie Wood
(Applicant) had been unfairly dismissed by Gunbalanya Sports and Social Club (Respondent).
The Applicant did not seek reinstatement and I determined therefore that I would consider
compensation. Ms Wood’s employment was terminated on or around 3 August 2017.
[2] As detailed submissions addressing the relevant provisions of s.392 of the Fair Work
Act 2009 (FW Act) in relation to compensation had not been made at the time of hearing the
merits case, I issued further directions on 22 December 2017 for the filing of submissions on
that matter. Both the Applicant and Respondent have complied with these directions.
[3] The parties have indicated that they are content for the Commission to determine
compensation on the basis of the written submissions filed in accordance with the directions.
(a) compensation amount
[4] The Applicant had worked for the Respondent for two years and four months
(s.392(2)(a)) at the time she was dismissed (including a period of leave without pay). She
worked as a cleaner/bar attendant. Save for the Applicant’s dismissal there were no
performance or conduct issues with respect to her employment.
[5] The Applicant submits that, if she had not been dismissed, she would have worked for
the Respondent for a further 12 months (“another wet season”).2
[6] The Respondent says that, whilst it acknowledges that the Applicant ought to be
treated independently and separately from her fiancé (who also worked for the Respondent
and was dismissed on 9 September 2017), the pair acted jointly on many key employment
matters. For example they commenced together, took leave at the same time and returned
from leave together. For this reason the Respondent submits that it is reasonable to assume
that the Applicant would have left her employment with the Respondent when her fiancé’s
employment ended in September 2017. The Respondent submits that there is no basis on
[2018] FWC 1191
DECISION
E AUSTRALIA FairWork Commission
[2018] FWC 1191
2
which to conclude the Applicant would have remained in employment with the Respondent
until the end of the wet season.
[7] The Applicant says that the end of her fiancé’s employment is not a relevant
consideration and that it cannot be assumed that she would have left the community and
employment when her fiancé finished his employment.
[8] The circumstances surrounding the end of the Applicant’s fiancé’s employment with
the Respondent are not clear. The Applicant says her fiancé was dismissed while the
Respondent makes vague references to his employment ending “for whatever reason”.3 Whilst
the Applicant and her fiancé clearly are a couple it can reasonably inferred from the
Applicant’s submissions on compensation that if her fiancé left the community where they
worked so would she. I reach this conclusion because the Applicant laments in her written
submissions the adverse effects of their current separation on their relationship, albeit they are
living in the same small rural community in Victoria. However, I do not have enough
information as to the reasons why her fiancé left his employment with the Respondent to draw
a conclusion that the Applicant would have left in late September 2017 if her employment had
not been terminated. If, for example, her fiancé’s employment was terminated they may have
stayed in the community and the Applicant may have remained in her employment in order to
gain some additional income. If her fiancé had left his employment voluntarily it may be
presumed this was a joint decision of the couple to leave.
[9] For this reason I am satisfied that the Applicant would have remained employed by the
Respondent through to the end of the wet season 2018 had her employment not been
terminated (that is, until April/May 2018). I have no reason to find otherwise. Events that
occurred consequent to her dismissal that may or may not have occurred because of her
dismissal cannot be used to assess what might have happened had she not been dismissed.
[10] I am therefore satisfied that the Applicant would have remained employed until the
end of the wet season, which I will take to be end of April, That is, she would have remained
employed for a further nine months.
[11] At the time of her dismissal the Applicant was earning $32.00 per hour plus
12% superannuation. The amount she would have been likely to receive had her employment
not been terminated is therefore $47,424.00 (s.392(2)(c)).
[12] The Applicant provides no evidence of any earnings since the termination of her
employment (s.392(2)(e)).
[13] The Applicant indicated that she and her fiancé have had to relocate back to a “small
rural country town”4 of Chiltern in Victoria where they live apart and have no fixed address.
[14] The Applicant submits that she has applied for three positions, apparently all in social
work. (The Applicant has been studying for a qualification in this area.) Two of the positions
applied for are in Queensland with the location of the third not specified. The Applicant said
she applied for the Queensland positions as she has a “fixed address” in Queensland.
[2018] FWC 1191
3
[15] In her reply submission the Applicant says that she and her fiancé “are living
separately…we therefore have no fixed address”5. It is not clear why her lack of co-habitation
with her fiancé is indicative that she has “no fixed address” or why it should adversely affect
her ability to apply for work. I would note however that, even if the Applicant does not have a
fixed address (she does not suggest she is homeless), this does not explain why she has found
it “extremely difficult to apply for jobs”.6 Further, the Applicant has chosen to restrict her job
search to the social work area in circumstances where she was clearly prepared to work as a
cleaner/bar attendant at least for a period of two to three years with the Respondent. I do not
suggest she should limit her search to similar work but do not understand the limitation on the
work she has been prepared to apply for. This is more so in circumstances where it is not clear
she has worked in the field before and where it is not clear that she has completed the studies
she was undertaking in this area.
[16] The Applicant suggests that a number of Victorian towns are not within commuting
distance of Chiltern and it is therefore unreasonable for her to be expected to apply for
positions in those towns. I note however that a number of towns are within commuting
distance of Chiltern. The Applicant does not explain why she has not sought work in these
towns but rather says she has limited her search for work to Brisbane where she has a “fixed
address.”7
[17] I am not convinced the Applicant has made the appropriate effort to mitigate her loss
by seeking alternative employment. She has limited her geographical search to Brisbane
(where she currently does not live), has not sought work in and near where she does live, and
has limited the work she has sought to that related to her studies in social work. I have
therefore decided to reduce the remuneration she would otherwise have received by 40% for
this reason (s.392(2)(d)). A person who has been dismissed bears a responsibility to look for
work such that at least the financial impact of the loss of employment is minimised. The
Applicant has not done so in this case to any reasonable degree.
[18] I have also decided to reduce the amount by a further 15% for general contingencies8 –
that is, for those things that might affect the Applicant’s earning capacity.
[19] The total lost remuneration is therefore $24,186.24 plus superannuation.
(b) reduction for misconduct
[20] The Applicant was not dismissed for misconduct. This is therefore not a relevant
consideration.
(c) shock, humiliation and distress
[21] I have not included any amount for shock, humiliation or distress.
(d) compensation cap
[22] The Applicant was earning $32.00 per hour. This equates to an annual salary of
$63,232. The relevant compensation cap is $31,616 (being the amount the Applicant would
have been entitled to receive in the 26 weeks prior to her dismissal). The amount I have
determined to order is less than this amount.
[2018] FWC 1191
4
(e) the effect of the order on the viability of the employer
[23] The Respondent has put nothing to me to suggest it could not meet any award of
compensation (s.392(2)(a)).
Conclusion
[24] For the reasons outlined above I shall order that the Applicant be paid an amount of
$24,186.24 gross plus superannuation.
[25] An order9 will be issued with this decision requiring the Respondent to make a
payment of this amount to the Applicant. The amount is to be paid within 14 days of the
making of the order.
COMMISSIONER
Final written submissions:
Applicant: 19 January 2018 and 16 February 2018.
Respondent: 5 February 2018.
Printed by authority of the Commonwealth Government Printer
PR600701
Endnotes:
1 Wood v Gunbalanya Sports and Social Club [2017] FWC 6806.
2 Applicant’s submissions dated 19 January 2018, para 13.
3 Respondent’s submission dated 5 February 2018, para 4.
4 Applicant’s submissions dated 19 January 2018, para 15.
5 Applicant’s submissions in reply dated 16 February 2018, para 10.
6 Applicant’s submissions dated 19 January 2018, para 20.
7 Ibid, para 17.
8 See Ellawala v Australian Postal Corporation Print S5109.
9 PR600798.
THE FAIR WORK MMISSION THE SEAL
