[2015] FWC 3126
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Heidi Cannon
v
Poultry Harvesting Pty Ltd
(U2014/15334)

COMMISSIONER WILSON

MELBOURNE, 6 MAY 2015

Application for relief from unfair dismissal.

[1] Heidi Cannon was dismissed from employment with Poultry Harvesting Pty Ltd (Poultry Harvesting) on 5 November 2014. After her dismissal she commenced an application for unfair dismissal remedy under the Fair Work Act 2009 (the Act).

[2] The application was initially made against “Geminian Investments Pty Ltd”, trading as “FOGGEM”, however the parties agreed that the proper Respondent should be Poultry Harvesting Pty Ltd, with the Applicant seeking an amendment to the application to that effect at the start of the hearing of the matter, and the representative for Poultry Harvesting Pty Ltd indicating their consent.

[3] Section 396 of the Act requires the determination of four initial matters to be considered before considering the merits of the application. Neither party put forward that any initial matter required determination. In relation to the elements within s.396, I make the following findings;

[4] An issue that requires determination is when Ms Cannon was dismissed. There appear to be three alternative times within the same day, Wednesday, 5 November 2014 when the dismissal may have occurred. For the reasons set out within this decision, I find that she was dismissed at the earliest of the times submitted, being at or around 3:00 AM in the course of a phone call with her supervisor, Mr Matteo Geminian.

[5] Ms Cannon was dismissed by Poultry Harvesting on 5 November 2014 because Mr Geminian believed that she had arrived at work intoxicated which was in breach of his and the company’s expectations. Later on the same day, he refused to reconsider his decision to dismiss Ms Cannon because not only did he believe that she had arrived at work intoxicated but that she had also lied to him about her fitness for work.

[6] For the reasons set out below, I find that at the time of dismissal, and even at the latest of the three available times for the time of dismissal, Poultry Harvesting did not have a valid reason for Ms Cannon’s dismissal. I also find, after consideration of the other criteria within s.387, that Ms Cannon was unfairly dismissed; that an order for reinstatement is not appropriate in all the circumstances; and that an order for compensation is appropriate.

BACKGROUND

[7] The parties described Ms Cannon’s work as involving moving a large piece of machinery with an attached conveyor belt through a large shed for the purpose of loading chickens onto trays. Mostly the chickens would be gathered onto the conveyor belt and thereby to the trays, but some would not be gathered in that way. As a result the activity required two or more employees at a time, including one operating the machinery and another walking alongside it either to entice chickens on the conveyor belt or to pick them up and deposit them onto the belt. Other work associated with the activity included dealing with birds who died in the process, referred to as “smothers”. After being loaded onto trays, the chickens would be put into trucks for delivery to various wholesalers and retailers.

[8] In addition to this background, the parties described that the chickens were being grown and harvested for the La Ionica brand, owned by Turi Foods Pty Ltd (Turi Foods). These chickens were owned by Turi Foods, who would contract firstly with the chicken farmer to raise the chickens; secondly with Poultry Harvesting to gather the chickens for transportation; and thirdly with a transportation contractor.

[9] The work of Ms Cannon, and associated employees, would commence each night at or around midnight, and on her evidence the work would continue to until about 7:00 AM. The location of the work, and possibly its duration, would change according to Turi Foods instructions. Ms Cannon also reported, and Mr Geminian did not contradict this evidence, that there were occasions when trucks did not arrive on time, in which case she and other employees might sleep for a period in a vehicle until the truck arrived. Ms Cannon said the following about this practice;

[10] Tuesday, 4 November 2014 was Melbourne Cup Day and in the course of the day, before going to work, Ms Cannon drank some alcohol. On her evidence she drank about three or four glasses of wine, between about midday and 9:30 PM. 3 Ms Cannon’s belief was that this left her not in a position to drive to work,4 explaining her belief in this way;

[11] In relation to the possibility that not being in a position to drive might be synonymous with not being able to work, Ms Cannon’s answered the following to a question from me;

[12] It is contested whether Ms Cannon knew she would work later that night.

[13] The parties have agreed the following relevant facts about the events of 4 and 5 November 2014;

[14] Mr Geminian’s evidence is that he went to the farm because he had been telephoned by one of Ms Cannon’s co-workers who had reported that he needed another person to attend for the crew because Ms Cannon was “useless”, that is, apparently intoxicated. 8 He arrived at the site at about 3:45 AM. His witness statement provides the following;

[15] In contrast, Ms Cannon’s evidence about the contact with Mr Geminian that night includes that he dismissed her in the course of the telephone conversation shortly after 3:00 AM and before he attended site and that he did so again or, at least reiterated what he had done previously, once he was at the site. 10 Mr Geminian consistently denied that he had dismissed Ms Cannon over the phone prior to arriving at the farm. However, while he initially said that he did not “sack her that night”11, he later conceded that he had dismissed her at the farm, giving the following evidence;

[16] The evidence of both parties discloses that notwithstanding the dismissal in the early hours of 5 November 2014, and that such dismissal was because Mr Geminian formed the view that she was intoxicated because of the smell of her breath, Ms Cannon was not sent home or instructed to leave. Ms Cannon’s evidence is that she kept working and did not finish her shift until between about 7:00 AM and 8:00 AM. 13 Mr Geminian’s evidence on the subject is less direct, but allows the inference that Ms Cannon did, indeed, keep working. His evidence describes what happened after he had left the farm;

[17] There is no evidence before me that Mr Geminian instructed Ms Cannon not to work, or instructed anyone to not let her work. Ms Cannon’s evidence is that she did work, and I find her evidence on that point to be credible and capable of acceptance.

[18] On the afternoon of 5 November 2014 Ms Cannon called Mr Geminian by telephone. The purpose of the call was for her to ask for her job back. 15 The further context of the phone call was that prior to leaving the farm, Mr Geminian and Ms Cannon had discussed having a phone call later that day, with Mr Geminian putting the purpose as being an opportunity for him to reflect on the dismissal at the farm;

[19] However, prior to having a telephone discussion with Ms Cannon, Mr Geminian received a phone call from Mr Dale Black who relayed information to Mr Geminian that had been given to him by Ms Cannon’s partner. The essence of that information was that Ms Cannon’s partner had expressed the view to Mr Black that Ms Cannon had been intoxicated the previous day and was not able to drive. While Mr Black gave evidence in the matter, Ms Cannon’s partner did not. In any event, acting upon this information from Mr Black, Mr Geminian affirmed his view about Ms Cannon, and in particular that she had lied to him the previous night about not having been drinking. As a result, in the course of the telephone call at about 2:30 PM Mr Geminian refused to change his mind and re-engage Ms Cannon. 17

LEGISLATION

[20] The legislative provisions which are relevant to this matter are set out in s.387 of the Fair Work Act 2009, which is as follows;

387 Criteria for considering harshness etc.

CONSIDERATION

[21] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Fair Work Commission (FWC) must take into account the legislative factors set out above.

(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)

[22] Because Ms Cannon was dismissed for misconduct, the Commission must first consider whether, on the balance of probabilities, the alleged misconduct actually occurred. 18 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.19 The Commission will also take into account the need for honesty on the part of the Applicant during the course of an investigation.20

[23] Poultry Harvesting argue that it had a valid reason for Ms Cannon’s dismissal because she arrived for work intoxicated; that this was conduct that could cause serious and imminent risk to the health and safety of the person; or conduct which could have caused risks to Poultry Harvesting’s business; and that she had neglected her duty during working hours by being passed out in a truck. 21

[24] While Ms Cannon agrees that she had been drinking prior to attending for work on 5 November 2014, her evidence is that she had a limited number of glasses of wine over the period from about midday on 4 November 2014, and none after 9:30 PM. It was not put to her that she was lying in that regard or that there was other directly corroborative evidence which might establish that she had been drinking to an amount greater than she says. Poultry Harvesting submitted that Ms Cannon was aware she would be required to work that night, and that receiving a text message from Mr Geminian about working that night would not have been a surprise to her. Ms Cannon’s evidence on the subject of whether she knew she had to work on 5 November 2014 was that she had been told late in the previous week by Mr Geminian that she would have the following Monday and Tuesday nights off. 22

[25] Evidence was given, through the hearsay relayed by Mr Black, that Ms Cannon’s partner had held concerns about her capacity to drive to work that night. Ms Cannon concedes that she did not drive to work out of her concern that she might be stopped for breath analysis however she did not agree that she was unable or unfit to work.

[26] Mr Geminian says that when he arrived at the premises he smelt alcohol on her breath; however his evidence is not that he observed Ms Cannon to be in an unfit state to work.

[27] While the submissions of Poultry Harvesting refer to Ms Cannon’s “neglect of duty during working hours by being passed out in the truck”, 23 no evidence was drawn on Ms Cannon being passed out. Instead the evidence was drawn around her being asleep in the truck, with which she agrees. Ms Cannon’s contention in this respect is that it happens often because trucks do not arrive on time and that employees will wake each other up.24 No contradictory evidence was provided by Mr Geminian or anyone on behalf Poultry Harvesting that that was not the case.

[28] Despite having been dismissed in the early hours of 5 November 2014 by Mr Geminian because he smelt alcohol on her breath, the evidence is that Ms Cannon was not directed to leave or to cease work and that she likely continued to work, for potentially another three or four hours. The evidence is inconclusive about precisely what occurred; Ms Cannon’s evidence is that she finished her shift between 7:00 AM or 8:00 AM, 25 whereas the Respondent argues that Ms Cannon was permitted to stay with a co-worker who was the person taking her home. The Respondent also concedes that it is unaware of whether Ms Cannon subsequently performed work and is not in a position to say that she did not perform work.26

[29] This is despite Ms Cannon having been dismissed by Mr Geminian because she was in a state which the Respondent submits could have “caused serious and imminent risk to the health and safety of a person” or amounted to “conduct that caused serious and imminent risk to the reputation, viability or profitability of Poultry Harvesting’s business”. 27

[30] In the course of submissions and evidence the Respondent put to the Commission a drug and alcohol policy which had been promulgated by Turi Foods and which was said to be not only applicable to the farm at which Ms Cannon was working, but also said to be known to her and part of her conditions of employment. 28 It was said by Mr Geminian that Turi Foods had a “zero tolerance” policy to the use of drugs and alcohol in the workplace and that it was “well known amongst the staff of Poultry Harvest that there is a Zero Tolerance to drug and alcohol”.29 Ms Cannon denied knowledge of the policy.30 While Mr Geminian agrees that the policy tendered in his evidence was not one that she signed, she likely would have signed something similar, “so she’d be aware of not drinking. Everyone know to be aware of not drinking”.31 Mr Black gave evidence that he saw Ms Cannon sign such a policy, acknowledging that she would be bound by it, albeit that what he saw was prior to Poultry Harvesting becoming her employer.32 The document said to have been signed by Ms Cannon was not tendered in evidence.

[31] On the balance of probabilities, it is possible to form the view that, like many workplaces, those attended by Poultry Harvesting employees in the course of their employment require workers not to be intoxicated and that employees including Ms Cannon would be bound by the obligation. Such would be a normal and reasonable policy at a workplace using machinery. However the evidence does not permit a finding that Ms Cannon was bound to a “zero tolerance” policy.

[32] The documents tabled within Mr Geminian’s evidence, are firstly the Turi Foods Drug and Alcohol Policy, 33 and what appears to be a generic Turi Foods Drug and Alcohol Policy poster.34

[33] The Policy provides in part;

[34] The poster provides the following written warning process, again in part;

[35] I accept that it is not said that this exact policy is the one that applies to Ms Cannon’s employment. The documents plainly do not set out a “zero-tolerance” approach to the use of drug and alcohol in the workplace, and instead set out what might be regarded as a “managed” time and counselling based approach aimed at correcting aberrant behaviour. Regardless of their application to Ms Cannon’s employment, what is set out in the documents was not followed by Poultry Harvesting in relation to the condition it says Ms Cannon was in. She was not stood down or removed from the workplace; she was not tested; and she was not warned or counselled.

[36] At best the policy documents had an uncertain status to these proceedings, with the respondent submitting that, notwithstanding its inclusion of the documents within its material, it did not argue that the documents had the status of a workplace policy or a term of employment. 37 Instead the documents contributed to employees’ general knowledge that drugs and alcohol are not permitted on the farms.38

[37] Even if this is the case, it is far from clear whether the general knowledge so imparted communicated that alcohol must not be used on a farm, or whether alcohol may not be consumed for some defined period prior to the commencement of work. This lack of clarity means there is also uncertainty about the standard of behaviour to which the Applicant was being held to account.

[38] Consideration of these matters leads me to find that Poultry Harvesting did not have a valid reason for Ms Cannon’s dismissal at any of the three points at which she may have been dismissed on 5 November 2014.

[39] The three points at which she may have been dismissed were;

[40] Consideration of the totality of the evidence given in the matter leads me to the view that Mr Geminian expressed views of dismissal in each of the three occasions. To the extent that there is an inconsistency between the evidence of Ms Cannon and Mr Geminian on these matters, I prefer Ms Cannon’s evidence.

[41] I have formed my views about the credibility of Ms Cannon’s evidence on this subject after taking into account the sequencing that she relates and its similarities to an earlier set of events in August 2014. Both Ms Cannon and Mr Geminian gave evidence about a dismissal of Ms Cannon at that time, which also included allegations about alcohol in the workplace. The dismissal on that occasion, which was retracted and not acted upon, appeared to go through a similar process of an initial dismissal by Mr Geminian followed by a retraction at a later point after he had reconsidered the situation and after further discussion with Ms Cannon.

[42] I have taken into account that this earlier dismissal and retraction also involved an allegation of the use of alcohol by Ms Cannon. A can of alcoholic beverage had been found in a poultry shed and the allegation was made by Mr Geminian to a number of staff, including Ms Cannon, that it was Ms Cannon who had brought the can into the premises. She had been dismissed without investigation of any significance and without opportunity to respond to the allegation. The dismissal was subsequently withdrawn after Ms Cannon pleaded for the return of her job.

[43] This previous event has links to Ms Cannon’s termination on 5 November 2014 in three possible respects;

[44] Having taken these linkages into account, I prefer Ms Cannon’s evidence about what was said to her by Mr Geminian at each of the three possible dismissal points to which I have referred. The product of this analysis is that it is likely he did say to Ms Cannon over the phone at around 3:00 AM that she was dismissed. Irrespective, he agrees he said to her that she was dismissed when at the farm at around 3:45 AM.

[45] In respect of whether or not there was a valid reason on the part of Poultry Harvesting to dismiss Ms Cannon, I find that;

(b) whether the person was notified of that reason

[46] I am satisfied that in this case Ms Cannon was told by Mr Geminian of the reason for her dismissal, with that reason being that she was, in his view, intoxicated at work.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;

[47] Ms Cannon was not provided with an opportunity to respond to the allegation made against her that she was intoxicated at work. While it could be argued that the opportunity to make such response was available to her in the course of the telephone conversation she had with Mr Geminian on 5 November 2014 at about 2:30 PM, the evidence does not disclose that the discourse between the two actually rose to that point. The conversation, even on Mr Geminian’s version, consisted mainly of him asking a single question about what he had been told by Mr Black; with her agreeing that she had had drunk wine; but then him dismissing her as a result without any real engagement with what her views may be.

[48] Strictly speaking, however, I note that in relation to the criterion of whether an employee has been given an opportunity to respond to the reason for dismissal, such consideration by the Commission is consequential to a finding there is a valid reason for dismissal, which I have not found. 39

(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;

[49] Ms Cannon was not afforded with an opportunity to have a support person at either of the three possible points of termination referred to above.

(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

[50] Ms Cannon’s dismissal was for misconduct, comprised of attending for and being at work while intoxicated. The evidence shows that she had been drinking before coming to work; that Mr Geminian smelt alcohol on her breath, but had insufficient evidence that would allow him to form the view she was intoxicated to the point of being unable, or unsafe, to work. The evidence is also that Mr Geminian took no steps to remove Ms Cannon from the workplace or to stop her from working the remainder of her shift. Thus Mr Geminian’s view of Ms Cannon’s intoxication was erroneous, although his view that she had consumed alcohol before presenting for work was correct.

[51] I accept that there was a general requirement that employees not be intoxicated while at work, however the company’s policies in this regard are far from clear. While Mr Geminian endeavoured to say in his evidence that the policy meant that employees should not consume alcohol in the hours before they started work, 40 a consideration of the totality of the evidence does not support that view. There is no evidence that would suggest Ms Cannon was aware that in no circumstances could she attend for work if she had drunk alcohol in a defined time period before the start of work. Mr Black’s views about the consumption of alcohol prior to working appeared twofold; on the one hand, it is not consistent with the Turi Foods policy,41 but on the other it would not prevent a person who was not affected by alcohol from working.42

[52] While the evidence supports a finding on the balance of probabilities that Ms Cannon was aware that consumption of alcohol at work was not permitted, or that presenting for work in an intoxicated state would not be permitted, I am not able to find that Ms Cannon had been warned or was aware that consuming alcohol to any level prior to presenting for work was not permissible.

(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

[53] I am satisfied that although Poultry Harvesting is not a “small business” within the meaning of s.23 of the Act, it is nonetheless a relatively small employer with between 20 and 22 employees 43

[54] I am satisfied as a result that the size of the employer’s enterprise appears to have impacted upon the decision to terminate Ms Cannon’s employment, and the way in which it was implemented. There appears to be no consultation between Mr Geminian with any person about Ms Cannon prior to saying to her, at any of the three termination points, that she was dismissed.

[55] Altogether the procedures of the company would reflect those of a micro business in that they appear to be ad hoc and without sophistication, and that Poultry Harvesting relies upon policies developed and promulgated by Turi Foods for its own purposes without real consideration as to whether they are appropriate or whether they require modification in any respect.

[56] I am also satisfied that the circumstance of Poultry Harvesting having taken over the business previously operated by a liquidated entity, FOGGEM Pty Ltd, only in October 2014, perhaps only a fortnight prior to Ms Cannon’s dismissal, may have had an impact on not only the procedures followed by Mr Geminian in dismissing Ms Cannon but also the access he had to certain employment records including those which might verify Ms Cannon’s acknowledgement of an applicable drug and alcohol policy with the prior entity.

(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;

[57] For the same reasons I am satisfied that the absence of dedicated human resource management specialists or expertise in Poultry Harvesting is likely to have impacted on the procedures followed by Mr Geminian in dismissing Ms Cannon.

(h) any other matters that the FWC considers relevant.

[58] I do not find any other matters that are relevant and which require being taken into account.

REMEDY

[59] The sections of the Act dealing with remedy once a finding of unfair dismissal has been made are as follows;

390 When the FWC may order remedy for unfair dismissal

391 Remedy—reinstatement etc.

392 Remedy—compensation

[60] Pursuant to subsection 390(3) an order for the payment of compensation to a person must not be made unless the Fair Work Commission “is satisfied that reinstatement of a person is inappropriate” and also that the Commission “considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[61] Ms Cannon’s application to the Fair Work Commission seeks compensation in lieu of reinstatement in the event of a finding of unfair dismissal, and she did not press for reinstatement in the course of the hearing. The Respondent’s material dealt only with the prospect of compensation. An injury she sustained after employment ended, and which is referred to later, may well preclude her reinstatement in any event.

[62] I am satisfied in all circumstances that it would be inappropriate to reinstate Ms Cannon and that instead I should give consideration to an order for the payment of compensation

(a) the effect of the order on the viability of the employer’s enterprise

[63] The evidence about Poultry Harvesting includes that Ms Cannon was employed by FOGGEM until 21 October 2014, and that after that date she was employed by Poultry Harvesting Pty Ltd. The evidence also includes that Poultry Harvesting employs only a small number of employees, between 20 and 22. There was no evidence presented to the effect that an order for compensation for Ms Cannon would affect the viability of Poultry Harvesting.

[64] Notwithstanding the submissions, there is nothing before me which would indicate that an order of compensation in and of itself would negatively affect the viability of the employer’s enterprise.

(b) the length of the person’s service with the employer

[65] Ms Cannon’s employment with Poultry Harvesting was for a very short period of about two weeks only, from 21 October 2014 until 5 November 2014. She had been employed by the company that preceded Poultry Harvesting, FOGGEM, from an indeterminate point in 2008 until 21 October 2014. There is an acceptance on the part of the Respondent, Poultry Harvesting, that there was a transfer of employment between the two entities. That allows a finding not only that the minimum employment period had been completed in Ms Cannon’s case, but also that the length of service to be considered for this criterion is the whole period of her employment with the two companies, namely a period of about six years, between 2008 and November 2014.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[66] In matters in which compensation is a consideration, the Commission ordinarily makes an assessment of remuneration the employee lost through dismissal, which in turn requires a finding in relation to “anticipated period of employment”. The Full Bench of the Australian Industrial Relations Commission has observed the following in relation to these matters;

[67] Ms Cannon was unfortunate enough to suffer an injury shortly before Christmas 2014 which led to her hand being broken and requiring surgery with a pin and plate being inserted. 45 The injury was sustained undertaking work at her partner’s parents farm and she remained injured at the time of the hearing. Ms Cannon’s evidence in the course of cross-examination is that notwithstanding the injury she is able to undertaking chicken harvesting work, although she would not be able to undertake the duties requiring her to operate machinery;

[68] Mr Geminian rejects that proposition, even if it were limited to working on the floor and not operating machinery;

[69] After taking into account the evidence in this matter I consider that Ms Cannon’s anticipated period of employment would have continued only until shortly before Christmas 2014, and that it would have been unlikely that she would have continued employment after sustaining the injury she has described to the Commission. While Ms Cannon is of the view that she is able to perform the work, or at least that part of the work which does not require operating machinery, it is likely that Mr Geminian, as the decision maker, would have taken a different view and that Ms Cannon’s employment would have ended at the time she sustained the injury, which she reports as being five days prior to Christmas, that is about 20 December 2014. 48

[70] I therefore find that Ms Cannon’s anticipated period of employment was a period of six weeks from 5 November 2014.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[71] Ms Cannon’s evidence is that she has looked for work since being dismissed by Poultry Harvesting, although the extent of that search has not been provided in detail in the evidence to the Commission, with the exception of Ms Cannon disclosing that she had been employed for a period of three to four weeks vaccinating chickens prior to her injury. 49

(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

[72] Ms Cannon’s evidence is that her employment vaccinating chickens earned her about $500 per week in gross payments. 50 In the absence of more precise evidence, I will make an allowance of 3.5 weeks at $500 per week as the earnings Ms Cannon had in the period between the date of her dismissal and the making of the order for compensation, that is an amount of $1750, plus 9.5% in superannuation contributions which would been due to her as well.

(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

[73] At the time of the hearing Ms Cannon was unemployed and so no adjustment requires being made for this criterion.

(g) any other matter that the FWC considers relevant.

[74] I am not aware of any other considerations which might be relevant to the order of compensation, and have considered all of the circumstances of the case in determining an appropriate remedy.

[75] Section 392(3) requires that if the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person then the FWC must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[76] Although Poultry Harvesting characterises Ms Cannon’s behaviour as misconduct, I am not satisfied, in all the circumstances, that it was such. Accordingly I do not discount the amount of compensation for this factor.

CONCLUSION AND ORDERS

[77] After consideration of the foregoing issues, I find that the Applicant was dismissed and that it was unfair within the meaning of the Act.

[78] I find that reinstatement is not an appropriate remedy in this case.

[79] I find that compensation is appropriate.

[80] The approach by the Fair Work Commission in these matters, and which I follow here, is to estimate the remuneration the employee would have received if they had not been dismissed (usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment); deduct any remuneration earned by the employee since their dismissal until the end of the anticipated period of employment; deduct an amount for contingencies; consider the impact of taxation and adjust the figure accordingly; and assess the figure against the compensation cap set by s.392(5). 51

[81] The evidence submitted on behalf of Ms Cannon includes that her average weekly wage in the period from 1 July 2013 to 30 June 2014 was $1453.46 per week, 52 and that her earnings in the period after June 2014 were consistent with that amount. Accordingly the amount of $1453 will be used as the basis of calculating the compensation to be paid, in addition to which will be paid 9.5% superannuation, which is the superannuation guarantee percentage applicable from 1 July 2014.

[82] In relation to the matter of contingencies, I find there are none that require being taken into account in this matter.

[83] Having regard to the criteria established by s.392 of the Act, and the considerations established by the FWC, I find that compensation should comprise a payment by the Respondent to the Applicant calculated as follows:

[84] The result of the foregoing analysis requires a payment to Ms Cannon by Poultry Harvesting of $6,968, to be taxed according to law, plus 9.5% in superannuation. An order to that effect will be issued by the Commission requiring payment within 14 days of the date of this decision.


COMMISSIONER

Appearances:

Mr M Comito (paid agent) and Ms H Cannon for the Applicant

Mr A Maher (paid agent), Mr M Geminian, and Mr D Black for the Respondent

Hearing details:

2015.

Melbourne:

19 and 20 March

 1   Transcript, PN 945

 2   Transcript, PN 370

 3   Transcript, PN 60; 260 - 262

 4   Transcript PN 59; 261 - 263

 5   Transcript, PN 263

 6   Transcript, PN 329 - 330

 7   Document ASOF1 - paras 4 - 11

 8   Witness Statement of Matteo Geminian, Exhibit R2, para 21

 9   Ibid, paras 23 - 26

 10   Witness Statement of Heidi Cannon, Exhibit A1, paras 15, 19

 11   Transcript, PN 665

 12   Transcript, PN 1063 -1069

 13   Transcript, PN 56

 14   Transcript, PN 556

 15   Transcript, PN 272

 16   Transcript, PN 1104

 17   Transcript, PN 1137

 18   Edwards v Giudice (1999) 94 FCR 561 [6]‒[7]

 19   Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171

 20   Streeter v Telstra Corp Ltd (2008) 170 IR 1

 21   Respondent’s Submissions,Exhibit R3, para 12

 22   Transcript, PN 316 - 318

 23   Ibid

 24   Transcript, PN 370

 25   Transcript, PN 56

 26   Transcript, PN 1344 - 1346

 27   Exhibit R3, para 12

 28   Exhibit R2, attachments MG-1 and MG-2

 29   Ibid, para 13

 30   Transcript, PN 299 - 311

 31   Transcript, PN 565

 32   Transcript, PN 389 - 393

 33   Exhibit R2, attachment MG-1

 34   Exhibit R2, attachment MG-2

 35   Exhibit R2, attachment MG-1

 36   Exhibit R2, attachment MG-2

 37   Transcript, PN 826

 38   Transcript, PN 832

 39   Chubb Security Australia Pty Ltd v Thomas (2000), Print S2679, at [41].

 40   Transcript, PN 1128

 41   Transcript, PN 415

 42   Transcript, PN 490

 43   Transcript, PN 945

 44   Ellawala v Australian Postal Corporation, AIRCFB (2000), Print S5109, at [33] and [34].

 45   Transcript, PN 76 - 78

 46   Transcript, PN 312

 47   Transcript, PN 580 - 583

 48   Transcript, PN 77

 49   Transcript, PN 74 and 1280

 50   Transcript, PN 1280

 51   See Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21, 32, and Ellawala v Australian Postal Corporation (unreported, AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) Print S5109 [33].

 52   Applicant’s average wages particulars, Exhibit A3

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