1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Mary-Ann Bowler
v
Trojan Wake Ski and Snow Pty Ltd
(U2023/8434)
DEPUTY PRESIDENT EASTON SYDNEY, 12 DECEMBER 2023
Application for an unfair dismissal remedy – applicant told without notice that her
employment was redundant – failure of employer to file or lead evidence – no valid reason for
dismissal – no procedural fairness – dismissal harsh and unreasonable – remedy –
compensation.
Background
[1] On 5 September 2023 Ms Mary-Ann Bowler made an application to the Fair Work
Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that she had
been unfairly dismissed from her employment with Trojan Wake Ski and Snow Pty Ltd. Ms
Bowler seeks compensation.
[2] On 16 August 2023 Ms Bowler was called into a meeting with the owner of the business,
Mr Roy Newlan, and told that her position was redundant. Ms Bowler was paid two weeks’ pay
in lieu of notice.
[3] Trojan Wake Ski and Snow argued that Ms Bowler’s dismissal was a genuine
redundancy. Trojan Wake Ski and Snow also argued that it was a small business employer as
defined in section 23 of the Fair Work Act 2009 (Cth) (FW Act).
[4] Trojan Wake Ski and Snow’s two assertions were dealt with as threshold issues. On 31
October 2023 I decided that Ms Bowler’s dismissal was not a genuine redundancy within the
meaning of s.389 of the FW Act (see Bowler v Trojan Wake and Snow Pty Ltd [2023] FWC
2871) and I was not satisfied that Trojan Wake Ski and Snow had less than 15 employees at the
time that Ms Bowler was dismissed.
[5] In my earlier decision I observed that Trojan Wake Ski and Snow’s adherence to the
pre-hearing directions was problematic (at [6]). Unfortunately the problems persisted because
Trojan Wake Ski and Snow did not comply with the pre-hearing directions and in fact did not
file any evidence at all in relation to whether Ms Bowler was unfairly dismissed.
[2023] FWC 3321
DECISION
AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2871.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc2871.pdf
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[6] This time Trojan Wake Ski and Snow did not file any materials at all, despite having
already participated in a hearing, having three weeks to prepare its evidence, a further extension
of time and a clear warning that if the evidence is not filed by the extended deadline then Trojan
Wake Ski and Snow would not be permitted to rely on any evidence at the hearing. At the
Hearing Mr Dauncey indicated that “being a small business, obviously I didn’t [file any
evidence] in time, so I’ve got nothing to rely on at the moment.”
[7] I am satisfied once again that by the time of the hearing Trojan Wake Ski and Snow had
a fair opportunity to prepare and present its case and, specifically, a fair opportunity to prepare
and lead evidence in relation to the matters in issue. The Commission does not have to ensure
that parties take the best advantage of these opportunities (see Galloway v Molina and Zhai
[2021] FWCFB 5419 at [24], (2021) 310 IR 151 at 157).
[8] Mr Dauncey appeared for Trojan Wake Ski and Snow and was described by Ms Bowler
as her manager. Mr Dauncey provided no evidence. Mr Newlan provided a statement of sorts
in the earlier proceedings. The only explanation for Trojan Wake Ski and Snow’s failure to give
evidence from either Mr Dauncey or Mr Newlan in the second proceeding was that Trojan
Wake Ski and Snow is a small business. This explanation is grossly inadequate.
[9] As such, the only evidence upon which I can make a decision is the evidence filed by
Ms Bowler. Because of the failure of Trojan Wake Ski and Snow to lead evidence that might
contradict Ms Bowler’s evidence, and the absence of an adequate explanation for this failure, I
can more readily accept Ms Bowler’s evidence to be correct and more readily accept inferences
adverse to Trojan Wake Ski and Snow that arise from Ms Bowler’s evidence (per Jones v
Dunkel [1959] HCA 8, (1959) 101 CLR 298).
Evidence and Submissions in the Applicant’s case
[10] Ms Bowler commenced employment with Trojan Wake Ski and Snow in or around
December 2021. Ms Bowler was employed as a customer service representative and her role
was to assist with in-store customer service, online customer enquiries, rostering and warranty
related matters.
[11] Ms Bowler provided a witness statement that included the following in relation to her
dismissal:
“On 11 August 2023 I was told by my manager, Dylan Dauncey via a phone call that the
business was ‘not in a good spot at the moment’. Dylan asked me if I could talk with the
other employees rostered on that day to ask if they could brainstorm ways for the
company to bring in more profit.
I did not receive anything in writing about any prospective major workplace change or
any indication at all that my position would become redundant at any stage.
On 16 August 2023 I was called into a meeting with the owner of Trojan, Roy Newland.
I was told that the business was financially struggling. I was told that as a result I was
being given two weeks’ notice of termination of my employment.
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb5419.htm
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I asked Roy why I had been selected to have my employment terminated rather than the
multiple casual employees. Roy told me that it was because my job could be divided
between the remaining people in the company.
I did not receive any indication or notice that my employment would be terminated prior
to the meeting with Roy on 16 August 2023.
I did not receive any amount of redundancy pay.
There was no valid reason for my dismissal relating to my capacity or conduct.
I did not receive any letter of termination on that day, only a text message from Dylan
confirming that I was not required to attend work during my notice period, and an email
from Roy on 17 August 2023 claiming that I was not entitled to receive redundancy pay
on the basis that “Trojan Wake Ski Snow is classified as a small business.”
[12] Trojan Wake Ski and Snow operates two stores, the Vineyard store in Windsor and a
second store in Rockdale. Ms Bowler said she was usually rostered to work at the Vineyard
location and worked at the Rockdale store on the odd occasion.
[13] In the earlier proceeding I was not satisfied that Trojan Wake Ski and Snow made a
decision that it no longer required Ms Bowler’s job to be done by anyone because of changes
in the operational requirements of the employer's enterprise (at [28]). I was critical of Trojan
Wake Ski and Snow’s evidence:
“[27] In my view Trojan Wake Ski and Snow did not meet its evidentiary onus. The
material contained within Mr Newlan’s statement, reproduced in full in paragraph [11]
above, does not travel beyond mere assertions. His statement does not provide any sound
evidentiary basis upon which I could be satisfied that Ms Bowler’s position was made
redundant because of changes in operational requirements. Frankly, the statement looks
to me like a computer-generated collection of management buzzwords and contains
almost nothing of substance relevant to these proceedings.”
Consideration
[14] Section 387 of the FW Act requires me to take into account the following matters in
determining whether Ms Bowler’s dismissal was harsh, unjust or unreasonable to the extent
that they are relevant to the factual circumstances before me:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or
conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
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(e) if the dismissal related to unsatisfactory performance by the person – whether the
person had been warned about that unsatisfactory performance before the dismissal;
and
(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct
(s.387(a))?
[15] It is difficult to decide whether there was a valid reason for dismissal without evidence
from the employer. The only evidence of the reasons for Ms Bowler’s dismissal was what she
said she was told by Mr Newlan on the day.
[16] Not that it was relied upon at the final hearing but Trojan Wake Ski and Snow’s evidence
in the previous proceedings was virtually meaningless because it did not engage with the issues
at hand. In the earlier proceedings concerning whether the dismissal was a genuine redundancy,
Trojan Wake Ski and Snow needed to provide evidence that satisfied me that Ms Bowler’s job
(as opposed to the general level of staffing) was no longer required to be done by anybody
because of operational reasons.
[17] Even if I were to accept that Ms Bowler’s position was lost because of the need to reduce
staffing levels, questions still arise in relation to the fairness of that dismissal about which the
employer could have given evidence but chose not to. The kinds of matters that arise for
consideration in a redundancy situation that is not a genuine redundancy (per s.389) include (1)
whether permanent or casual staff should be reduced (2) whether staff with longer periods of
service should have some priority over brand-new staff (3) whether alternatives were available
other than dismissal, such as reducing Ms Bowler’s hours, and so on.
[18] In the circumstances I’m not prepared to find that there was a valid reason for dismissal
based only on the strength of what Ms Bowler was told.
Was the Applicant notified of the valid reason (s.387(b))?
[19] Section 387(b) requires me to take into account whether the employee “was notified of
that reason.” Sections 387(b) and (c) direct the FWC’s inquiry to matters of procedural fairness.
In general terms a person should not exercise legal power over another, to that person’s
disadvantage and for a reason personal to him or her, without first affording the affected person
an opportunity to present a case (per Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137
at 151 [70] citing FAI Insurances Ltd v Winneke (1982) 151 CLR 342; Kioa v West (1985) 159
CLR 550; Annetts v McCann and others (1990) 170 CLR 596).
[2023] FWC 3321
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[20] Because I am not satisfied that there was a valid reason related to Ms Bowler’s capacity
or conduct, this factor is not relevant to the present circumstances (per Read v Gordon Square
Child Care Centre [2013] FWCFB 762 at [46]-[49]).
Was the Applicant given an opportunity to respond to any valid reason related to their
capacity or conduct (s.387(c))?
[21] The opportunity to respond to which s.387(c) refers is an opportunity to respond to the
valid reason for which the employee may be about to be dismissed.
[22] This factor is similarly not strictly relevant to the present circumstances because I have
not found that there was a valid reason related to Ms Bowler’s capacity or conduct.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person
present to assist at discussions relating to the dismissal (s.387(d))?
[23] This factor is not a relevant consideration in this matter.
Was the Applicant warned about unsatisfactory performance before the dismissal
(s.387(e))?
[24] As the dismissal did not relate to unsatisfactory performance, strictly speaking this
factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the
procedures followed in effecting the dismissal (s.387(f))?
[25] Trojan Wake Ski and Snow insists that it has less than 15 employees. I found to the
contrary and even though Trojan Wake Ski and Snow indicated it would appeal the earlier
decision, no appeal was lodged. I am nonetheless prepared to assume that Trojan Wake Ski and
Snow’s size impacted in some way upon the procedures it followed. There is of course no
specific evidence from Trojan Wake Ski and Snow about the procedures it followed. As such,
this factor points in Trojan Wake Ski and Snow’s favour but not in any material way.
To what degree would the absence of dedicated human resource management specialists
or expertise in the Respondent’s enterprise be likely to impact on the procedures followed
in effecting the dismissal (s.387(g))?
[26] Similarly there does not appear to be any discernible dedicated human resource
management specialists or expertise in Trojan Wake Ski and Snow’s enterprise, which in the
context of s.387(g) points in Trojan Wake Ski and Snow’s favour but in this case not in any
material way given the absence of evidence from Trojan Wake Ski and Snow.
What other matters are relevant (s.387(h))?
[27] Section 387(h) requires the Commission to take into account any other matters that the
Commission considers relevant. Ms Bowler submitted the following in this regard:
“There was no operational basis for the employer to terminate my employment.
I was not consulted about my “redundancy” as a form of major workplace change, as
required by the General Retail Industry Award.
There was no offer of alternative employment (including redeployment).”
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[28] These submissions are based on the findings of the earlier proceedings and they point
in Ms Bowler’s favour.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or
unreasonable?
[29] I have made findings in relation to each matter specified in section 387 as relevant. I
must consider and give due weight to each as a fundamental element in determining whether
the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
[30] I find that the dismissal of Ms Bowler was harsh and unreasonable.
Remedy - Compensation
[31] Being satisfied that Ms Bowler made an application for an order granting a remedy
under s.394, was a person protected from unfair dismissal and was unfairly dismissed within
the meaning of s.385 of the FW Act, I may order Ms Bowler’s reinstatement, or the payment
of compensation to her, subject to the FW Act.
[32] Ms Bowler did not seek reinstatement and reinstatement is not appropriate in any event.
In relation to compensation Ms Bowler said:
“Since my dismissal on 16 August 2023 I have found other work on a casual basis.
I have been working at [another employer] as a casual bar staff approximately 20-25hrs
per week since 15th September, a period of 8 weeks.
I’m paid $30.10 in this new position. I was previously earning $27.00 per hour at Trojan
Wake and Ski. This means I am earning approximately $400.00 per week less than in
my previous employment with Trojan Wake and Ski.”
[33] Ms Bowler said in support of her claim for severance pay “My employer’s implausible
contention that they were a small business deprived me of my entitlement to receive four weeks’
redundancy pay under section 119 of the Act.” Whilst there is some force in this submission,
the Commission has no jurisdiction to make orders regarding unpaid redundancy entitlements.
Is an order for payment of compensation appropriate in all the circumstances of the case?
[34] Having found that reinstatement is inappropriate, it does not automatically follow that a
payment for compensation is appropriate. The question whether to order a remedy remains a
discretionary one (per Nguyen v Vietnamese Community in Australia t/a Vietnamese
Community Ethnic School South Australia Chapter [2014] FWCFB 7198 at [9]).
[35] Where an applicant has suffered financial loss as a result of the dismissal, this may be a
relevant consideration in the exercise of this discretion (per Vennix v Mayfield Childcare Ltd
[2020] FWCFB 550, [20]; Jeffrey v IBM Australia Ltd [2015] FWCFB 4171 at [5]-[7]).
[36] In all the circumstances, I consider that an order for payment of compensation is
appropriate to compensate Ms Bowler for financial losses she has suffered arising from being
unfairly dismissed.
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb7198.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb550.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb4171.htm
[2023] FWC 3321
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Compensation – what must be taken into account in determining an amount?
[37] Section 392(2) of the FW Act requires all of the circumstances of the case to be taken
into account when determining an amount to be paid as compensation to Ms Bowler in lieu of
reinstatement including:
(a) the effect of the order on the viability of the Respondent’s enterprise;
(b) the length of the Applicant’s service;
(c) the remuneration that the Applicant would have received, or would have been likely to
receive, if the Applicant had not been dismissed;
(d) the efforts of the Applicant (if any) to mitigate the loss suffered by the Applicant
because of the dismissal;
(e) the amount of any remuneration earned by the Applicant from employment or other
work during the period between the dismissal and the making of the order for
compensation;
(f) the amount of any income reasonably likely to be so earned by the Applicant during the
period between the making of the order for compensation and the actual compensation;
and
(g) any other matter that the Commission considers relevant.
[38] I will consider these factors in sequence:
a) There is no evidence suggesting that an order for compensation would have an effect on
the viability of the employer’s enterprise;
b) Ms Bowler’s length of service was less than two years, which is not insubstantial and
slightly favours a greater amount of compensation;
c) if Ms Bowler had not been dismissed on 16 August 2023 her employment was unlikely
to have continued for any more than a few weeks;
d) Ms Bowler mitigated her loss by finding other employment within four weeks, albeit
earning $400 less per week. Ms Bowler says she earned $27 per hour for 38 hours per
week, being $1,026 per week;
e) the amount of income reasonably likely to be earned by Ms Bowler between the making
of the order for compensation and the payment of compensation is not directly relevant;
and
f) there are no other directly relevant matters.
Compensation – how is the amount to be calculated?
[39] The well-established approach to the assessment of compensation under s.392 of the
FW Act is to apply the “Sprigg formula” derived from the Australian Industrial Relations
Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88
IR 21 (Sprigg) (see also Bowden v Ottrey Homes Cobram and District Retirement Villages
(2013) 229 IR 6; [2013] FWCFB 431 and Double N Equipment Hire Pty Ltd t/a A1
Distributions v Humphries [2016] FWCFB 7206 at [16]).
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb431.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7206.htm
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[40] The approach in Sprigg is as follows:
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
(remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are
deducted but not social security payments. The failure of an applicant to mitigate her
loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual
amount he or she would have received if they had continued in their employment.
Step 1
[41] I have estimated the remuneration Ms Bowler would have received, or would have been
likely to have received, if Trojan Wake Ski and Snow had not terminated her employment to
be $8,208 on the basis of my finding that Ms Bowler would likely have remained in
employment for a further period of 8 weeks.
Step 2
[42] I have found that the amount of remuneration earned by Ms Bowler in the first 8 weeks
after the date of dismissal was $2408, being 4 weeks at 20 hours per week at $30.10 per hour.
[43] The difference between the two sums is $5,800.
Step 3
[44] I now need to consider the impact of contingencies on the amounts likely to be earned
by Ms Bowler for the remainder of the anticipated period of employment (see Enhance Systems
Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001) at
[39]).
[45] Given the short period that Ms Bowler was out of work I do not think it is appropriate
to deduct any amount for contingencies.
Step 4
[46] I have considered the impact of taxation but have elected to settle a gross amount of
$5,800 and leave taxation for determination.
[47] Having applied the formula in Sprigg, I am nevertheless required to ensure that “the
level of compensation is an amount that is considered appropriate having regard to all the
circumstances of the case” (see Double N Equipment Hire Pty Ltd t/a A1 Distributions v
Humphries [2016] FWCFB 7206 at [17]).
[48] I am satisfied that the amount of compensation that I have determined above takes into
account all the circumstances of the case as required by s.392(2) of the FW Act.
https://www.fwc.gov.au/documents/decisionssigned/html/pr910779.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb7206.htm
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[49] In this matter the amount of the order for compensation is not to be reduced on account
of misconduct (per s.392(3)). The cap on compensation in s.392(5) of the FW Act has no impact
upon the present matter.
[50] In light of the above, I will make an order that Trojan Wake Ski and Snow pay $5,800
less taxation as required by law to Ms Bowler in lieu of reinstatement within 21 days of the date
of this decision, plus an additional component for superannuation (PR769338).
DEPUTY PRESIDENT
Appearances:
M Bowler, Applicant
D Dauncey, for Trojan Wake Ski and Snow
Hearing details:
2023.
Sydney (By Video using Microsoft Teams)
December 12.
Printed by authority of the Commonwealth Government Printer
PR769337
OF THE THE SEAL WORK COMMISSION
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr769338.pdf
