[2013] FWC 1994 |
FAIR WORK COMMISSION |
FURTHER DECISION IN REGARD TO REMEDY |
Fair Work Act 2009
s.394—Unfair dismissal
Sam Guido
v
Akzo Nobel Pty Ltd
(U2012/9236)
COMMISSIONER CRIBB |
MELBOURNE, 23 APRIL 2013 |
Application for unfair dismissal remedy - further decision in regard to remedy.
[1] This decision concerns determination of an amount of compensation and instalments to be ordered by the Commission. It follows the decision 1 issued on 7 March 2013 in which the Commission found that Mr Guido had been unfairly dismissed. In that decision, the Commission was unable to finally determine an amount of compensation as there was insufficient material before the Commission at that time.2
[2] Accordingly, the parties were directed to reach agreement as to Mr Guido’s hourly rate. The Union was directed to provide an update as to whether alternative employment had been obtained by Mr Guido since the date of the hearing and the amount of income earned (if any).
[3] On 12 March 2013, the Commission was provided with an agreed hourly rate of $31.6368 for a 35 hour week by the parties. 3 Further, an affidavit from Mr Guido, dated 12 March 2013, was forwarded to the Commission and to the Company. The affidavit set out Mr Guido’s further attempts to obtain full time employment together with the income he has received since the date of the hearing. Also in the affidavit, Mr Guido stated that the only income he has received is $90.00 in unemployment benefits on or about 5 March 2013.4
[4] A supplementary submission 5 was filed on behalf of the company on 21 March 2013. The submission dealt with mitigation of loss and income earned and challenged Mr Guido’s affidavit with respect to these issues. It was argued by the company that his efforts at mitigation were poor which should result in a significant discount of the compensation amount.6 The respondent contended that the three attendances at the employment agency represented the whole of Mr Guido’s effort to find alternative employment in the period since the hearing. This was said to be at the rate of one visit every 4.25 weeks.7 With respect to the applicant applying for jobs, it was stated that he had applied for a total of 4 jobs in eight months.8
[5] In addition, Akzo Nobel submitted that Mr Guido should be required to obtain documentation from Centrelink and his bank to verify his claim as to his remuneration. 9
[6] The union provided a submission in reply to the Respondent’s supplementary submission on 15 April 2013. 10 In the submission, reference was made to the Full Bench decision in Biviano v Suji Kim Collection11 which set out the principles for determining the issue of mitigation of loss.12
[7] It was argued that the Commission should give due weight to the following:
[8] I will now deal with the determination of an amount of compensation and instalments.
Compensation amount and instalments
(i) Remuneration that would have been received (s.392(2)(c)
[9] I have previously decided that, if Mr Guido had not been dismissed, he would have continued to work for another six months. 14 Over that six month period, the remuneration Mr Guido would have received, or would have been likely to receive, from Akzo Nobel, is 26 weeks x 35 hours of work per week x $31.6368 gross per hour = $28,789.49 gross. Whilst other matters, such as superannuation, form part of remuneration, they have not been included in the calculations because their details were not contained in the evidence.
(ii) Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f)
[10] These sections of the Act deal with the amount of any remuneration earned by Mr Guido from employment in other work. This is, firstly, during the period between his dismissal and the making of an order for compensation, and, secondly, any income reasonably likely to be earned during the period between the making of an order for compensation and the actual compensation. Given the facts of this case, I will deal with both of these periods together.
[11] It was Mr Guido’s evidence during the hearing that he had earned no remuneration between his dismissal and the date of hearing (first period). Mr Guido’s affidavit, dated 12 March 2013, stated that his income since the date of the hearing has been $90.00 in the form of unemployment benefits.
[12] The company sought documentary evidence from Centrelink and Mr Guido’s bank statements to support his contentions regarding the amount earned since his dismissal. 15
[13] The evidence of Mr Guido and his affidavit dated 12 March 2013 are sworn evidence. There is nothing before me to suggest that Mr Guido’s statements about his income are not true. Therefore, there is no necessity for Mr Guido to obtain supporting documentation. In any event, Social Security payments are not generally taken into account by the Commission in determining the amount of remuneration earned.
[14] As set out in paragraph 3 above, it is reasonable to assume that Mr Guido will not earn any income in the period from the making of an order for compensation and the actual compensation (second period).
[15] As set out above in paragraph 7, Mr Guido would have earned $28, 789.49 gross over the 6 month period, from the date of his dismissal to 12 January 2013. This is the period that it is likely that Mr Guido would have continued to work for Akzo Nobel, if he had not been dismissed. During this period, Mr Guido earned no remuneration. Therefore, there are no deductions from the amount Mr Guido would have received or would have been likely to have received from the Company had he not been dismissed.
[16] This results in an amount of $28,789.49 gross.
(iii) Other matters (s.392(2)(g)
[17] As the protected period of continued employment has passed (12 January 2013), and the situation is known, there is no sound basis for making a deduction for contingencies.
[18] The impact of taxation has been considered but a gross amount will be settled on. There are no other matters that are considered relevant in determining an amount of compensation instead of reinstatement, apart from those in ss.392(2)(a), (b) and (d), 392(3) and 392(5). These will now be dealt with.
(iv) Viability (s.392(2)(a))
[19] There is no basis to conclude that an order of compensation for $28,789.49 gross payable by Akzo Nobel to Mr Guido would affect the viability of Akzo Nobel’s enterprise. It is not a matter which in this case warrants adjustment to the amount.
(v) Length of service (s.392(2)(b))
[20] Mr Guido’s length of service with Akzo Nobel was 23 years and 10 months. This length of service in my view supports increasing the amount of $28,789.49 gross by 10%. This would result in a figure of $31,668.44 gross.
(vi) Mitigation efforts (s.392(2)(d))
[21] As well as the earnings of the dismissed person, section 392 of the Act requires the Commission to take into account the efforts of the dismissed person (if any) to mitigate the loss suffered by them because of their dismissal.
[22] During the hearing, Mr Guido gave evidence that he had been looking for work by going through the newspapers and a local employment placement agency. He said that he had unsuccessfully applied for two positions but that “Once they hear about my back operation, they're not overly keen.” 16 Further, in his affidavit, Mr Guido indicated that he had attended an employment agency three times. At his next appointment (22 March 2013), he was to be given assistance in applying for jobs online. He also stated that he had unsuccessfully applied for a position in February 2013 and March 2013.17
[23] The Commission was referred by the company to the Full Bench decision in Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Child Care Centre. 18 In this decision, the Full Bench deducted $2100 from the compensation amount because “... there was a paucity of evidence on Ms Read’s efforts to mitigate the loss she has suffered..”.19
[24] In this case, Mr Guido has provided details of the efforts he has made to mitigate his loss. The question here, therefore, is whether Mr Guido has made reasonable attempts to mitigate his loss. Since his dismissal, Mr Guido has applied for four positions, albeit unsuccessfully. He has also been looking through the newspapers and has been attending at an employment agency, who, in March 2013, were scheduled to assist him with applying for jobs online. In all of the circumstances and on balance, I find that Mr Guido has made reasonable efforts to mitigate his loss. In reaching this conclusion, I have taken account of, on the one hand, the respondent’s submissions regarding a lack of apparent diligence by the applicant. On the other hand, I have taken account of Mr Guido’s age, skill level and family circumstances. Therefore, I am not of the view that there should be a reduction in the amount of compensation, as sought by the company.
(vii) Misconduct (s.392(3))
[25] As I am satisfied that Mr Guido’s misconduct contributed to the company’s decision to dismiss him, there will be a deduction of the compensation that would otherwise have been ordered. On the basis of the nature of the misconduct, the reduction will be 20%, resulting in an amount of $25,334.75 (gross).
(viii) Compensation cap (s.392(5))
[26] Since the amount of compensation of $25,334.75 gross is less than the compensation cap in s.392(5) of the Act ($28,789.49), I make no further reduction for that reason.
(ix) Instalments (s.393)
[27] There were no submissions that any amount of compensation should be subject to payment by instalments. I am not satisfied, that in this case, payment by instalments is warranted.
Conclusion
[28] Therefore, it is considered appropriate to make an order that Akzo Nobel pay $25,334.75 gross, less taxation as required by law, as compensation to Mr Guido in lieu of reinstatement, within 14 days of the date of this decision.
COMMISSIONER
2 Ibid at [163] - [164]
3 Email from United Voice on 12 March 2013 and email from Mr Ludeke to Mr Gome dated 11 March 2013.
4 Affidavit of Sam Guido dated 12 March 2013 attached to an email from United Voice dated 12 March 2013.
5 Supplementary Submission attached to an email from Mr Ludeke dated 21 March 2013
6 Ibid at paragraph 9
7 Ibid at paragraph 3
8 Ibid at paragraphs 4 - 6
9 Ibid at paragraphs 10 - 13
10 Applicant’s Submission in Reply, dated 15 April 2013
12 Applicant’s Submission in Reply, dated 15 April 2013, at paragraph 2
13 Ibid at paragraph 4
14 [2013] FWC 1222 at [156]
15 Supplementary Submission attached to an email from Mr Ludeke dated 21 March 2013 at paragraphs 11 - 13
16 Transcript PN 299
17 Affidavit of Mr Guido dated 7 March 2013
19 Ibid at [82]
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