[2017] FWC 4286
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Lisa Knight
v
Fawcett Plumbing Pty Ltd T/A Fawcett Plumbing
(U2017/1699)

COMMISSIONER PLATT

ADELAIDE, 18 AUGUST 2017

Application for an unfair dismissal remedy – no valid reason – dismissal harsh, unjust or unreasonable – compensation awarded.

Summary

[1] On 17 February 2017, Miss Knight lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by her former employer Fawcett Plumbing Pty Ltd T/A Fawcett Plumbing (Fawcett Plumbing) on 27 January 2017.

[2] The matter was arbitrated on 15 and 16 June 2017. Ms Kaukas of counsel was granted permission under s.596(2) of the Act to represent Miss Knight and Mr Fawcett represented Fawcett Plumbing.

[3] There was no dispute that Miss Knight was protected from unfair dismissal at the relevant time pursuant to s.382 of the Act.

[4] Miss Knight was employed in the role of Office Manager at Fawcett Plumbing from 13 July 2016. She performed a wide range of administrative tasks.

[5] Miss Knight provided a witness statement1 and supplementary statement 2 and gave evidence on her own behalf.

[6] Fawcett Plumbing provided witness statements and led evidence from the following employees:

[7] There were a number of other witness statements initially filed but after receiving correspondence, which I have marked confidential pursuant to s.594 of the Act, alleging that the statements had not been prepared by the persons named and after Mr Fawcett’s admission that the statement preparation process may not have included consultation with the relevant author at a directions conference, I required statutory declarations to be prepared by the witnesses.

[8] The position of Miss Knight is summarised as follows:

[9] The position of Fawcett Plumbing is summarised as follows:

The Witness Evidence

Lisa Knight

[10] Miss Knight provided a statement 4 and a supplementary statement.5

[11] Miss Knight was first employed by Fawcett Plumbing as a reception/accounts/systems operator in late 2014. She resigned from that tenure of employment in April 2016.

[12] After a period of working with a different employer she commenced the current period of employment with Fawcett Plumbing as Office Manager on 13 July 2016. Miss Knight was paid $56,000 6 (or $1076.92 per week).

[13] Miss Knight’s role included a range of administrative tasks some of which included invoicing, chasing debts, KPI’s, creating systems and procedures, working with the book keeper, setting up all emails, taking telephone calls, organising staff functions, stock control, and HR duties such as performing the induction of all new staff members, writing any disciplinary actions to be taken and processing HR monthly reports.

[14] Miss Knight believed she met the requirements of the role and was not subject to any disciplinary action. On a few occasions, Mr Fawcett had spoken to her informally about smoking at work. He also discussed lateness with her - she indicated that she generally worked back and after that discussion made an effort to attend on time.

[15] Miss Knight gave evidence that she was a smoker and that Mr Fawcett disapproved of this habit. Mr Fawcett had four discussions with her in June/July 2016 in relation to her smoking and the frequency of her leaving the office to do the same.

[16] Miss Knight accepted that she had been late to work by 5-25 minutes on about five occasions per month, but contended it did not impact her work. Miss Knight would advise Mr Fawcett by text and the lateness normally related to her child commitments and school drop off. Mr Fawcett had three conversations with her about lateness.

[17] On 27 January 2017, she was approached by Mr Butler who told her that Mr Fawcett, who was overseas in Thailand at the time, had reviewed the camera vision and had noticed that she had arrived to work late. Mr Butler told her that he was instructed by Mr Fawcett to tell her to write herself a warning for being late. She did not do so.

[18] Around 4:50pm on 27 January 2017, Mr Lambi approached Miss Knight and said that he needed to speak to her. Mr Lambi stated that he could not believe that they were making him do this and verbally gave her two weeks’ notice of her dismissal. Miss Knight was confused and initially thought that Mr Lambi was joking.

[19] Miss Knight then telephoned Mr Fawcett, who was still in Thailand. Mr Fawcett informed her that her employment was being terminated because of her anxiety and because she was not suitable for the position. Miss Knight questioned this as her anxiety had never affected her work. Mr Fawcett indicated that two people had told him that she was not suitable for the position. Miss Knight became upset and began crying and Mr Fawcett told her not to attend work until they had spoken further.

[20] On 29 January 2017, Miss Knight received an email with her final payslip. Miss Knight was paid two weeks’ notice. Upon receiving the payslip, she sent a text message to Mr Fawcett asking what was going on. Mr Fawcett responded that she should speak to Mr Lambi.

[21] Miss Knight telephoned Mr Lambi who did not know what was going on, he said that he understood that she had been “sacked” and was “finished”.

[22] At 11:00am 30 January 2017, Miss Knight telephoned Mr Fawcett and asked what was going on. Mr Fawcett indicated that it was because she was incompetent.

[23] Miss Knight contended that she was not the subject of any informal or formal counselling and was never warned that her employment was in jeopardy.

[24] Miss Knight contended that other employees who were late, or acted inappropriately, received a written warning but were not dismissed. Another employee who fell asleep at his desk also received a written warning but was not dismissed.

[25] Miss Knight accepted that she had sworn in the office, but this was part of the office banter. In late 2016, a meeting was held with staff about such conduct but it continued none the less.

[26] Had she not been terminated, Miss Knight believes she would have worked at Fawcett Plumbing for the foreseeable future, noting that at times Mr Fawcett was difficult to deal with.

[27] Since the termination of her employment, Miss Knight has secured alternative casual/part-time employment which commenced on 20 February 2017 and became full-time on 1 May 2017 earning $49,400 per annum. In the period between the dismissal and 14 May 2017 she earned $7,980 gross as detailed below:

Mark Fawcett

[28] Mr Fawcett provided a witness statement and a statutory declaration. 7

[29] Mr Fawcett contended that he had little knowledge of the Fair Work Act 2009 but was aware of its existence at the time of the dismissal.

[30] He was aware that counselling should be given to employees along with warnings in writing. He understood that he needed to advise employees as to why they were to be dismissed.

[31] Miss Knight was employed as Office Manager for her second period of employment with Fawcett Plumbing.

[32] Mr Fawcett suggested that Miss Knight had a negative attitude throughout her employment. Mr Fawcett attempted to change her attitude and perception, counselling her almost twice a week.

[33] Whilst giving evidence, Mr Fawcett said he was frustrated with the amount of time Miss Knight was doing the wrong thing. He contended that he spoke to Miss Knight on five occasions in relation to her conduct.

[34] Mr Fawcett contended that in 2016 he spoke with Miss Knight in relation to her conduct towards another employee and gave her a verbal warning not to behave in that way.

[35] In November 2016, Mr Fawcett described Miss Knight in a text message as a ‘super Manager’. 8

[36] Mr Fawcett accepted that Miss Knight was never warned that her conduct could result in disciplinary action.

[37] Mr Fawcett agreed that he did not like smoking but contended that his concerns were not about smoking in general but the impact of Miss Knight leaving the office to have a smoke on other employees.

[38] Mr Fawcett contended that Miss Knight was on a ‘power trip’.

[39] Mr Fawcett accepted that written warnings had been given to other employees in this period.

[40] Mr Fawcett had sent text messages to employees inviting them to ‘finish up’ if they disagreed with his directions. 9

[41] Mr Fawcett felt that he was supportive and considerate about Miss Knight’s lateness and smoking in a non-designated area.

[42] Whilst he was in Thailand, Mr Fawcett had observed Miss Knight coming to work late and smoking via a video link. He contacted Mr Lambi and asked him to ‘finish her up’. He did not tell her why he was so disgusted with her conduct. At the time of the dismissal, Mr Fawcett’s father-in-law had just passed away.

[43] Mr Fawcett accepted there was an absence of procedural fairness in this matter.

Luke Butler

[44] Mr Butler provided a witness statement and a statutory declaration. 10 Mr Butler said his statement was prepared by Mr Mihir Shinde.

[45] Mr Butler is the Operations Manager at Fawcett Plumbing which includes looking after technicians who work on the ground and coordinating with the office for their jobs. This involved liaising with Miss Knight on a regular basis.

[46] Mr Butler gave evidence that he had to repeatedly asked Miss Knight to complete tasks such as providing written warnings, correct information to allow follow ups to be completed for customer complaints and approving money. He constantly had to check the schedule as Miss Knight would not check it.

[47] Mr Butler further contends that Miss Knight was too busy to train staff, talked down to staff, was constantly late and would threaten staff with termination.

[48] In cross-examination, Mr Butler said about 80% of his working time was not in the presence of Miss Knight. He accepted that swearing in the office was a common practice and he and Mr Fawcett participated in the same.

[49] Mr Butler accepted he sent Miss Knight a text message which used the word ‘Fuck’. 11

[50] Mr Butler had been asked to prepare written warnings for employees.

[51] Mr Fawcett would occasionally tell employees ‘if you don’t like it then they can get out’ or ‘if you don’t enjoy your job, there’s the gate’.

Alicia Brooks

[52] Ms Brooks provided a witness statement and a statutory declaration. 12

[53] Ms Brooks is the Receptionist and Administrator – Cash Sales at Fawcett Plumbing.

[54] Ms Brooks’ felt that her induction was poor. On her first day she was told to stand until Miss Knight could find her a seat, Ms Brooks expected that a desk would have been prepared. Miss Knight then sat with Ms Brooks for half an hour and showed her how to enter three invoices into a database system. Miss Knight left Ms Brooks to continue entering the invoices despite Ms Brooks not feeling confident.

[55] Ms Brooks felt that she was “constantly walking on eggshells” and that her employment was not secure. 13

[56] In January 2017, Ms Brooks took two weeks’ of annual leave. Prior to going on leave, Ms Brooks asked Miss Knight for some help with her workload to enable her to be up to date before taking leave. Miss Knight responded “Well that’s what happens if you want to take holidays”. 14

[57] Whilst on leave, Ms Brooks received telephone calls from Miss Knight. Upon returning, Ms Brooks was given a pile of work that had not been done. She expected Miss Knight, as Office Manager, to have someone complete her work whilst she was on leave.

[58] Ms Brooks also noted that Miss Knight would make comments like “Watch out for Luke, he’s a snake, he is Mark’s eyes and ears” which Ms Brooks felt was inappropriate.

[59] Since the dismissal, Ms Brooks has noticed that there is no more negativity and that everyone is working as a team. 15

Mihir Shinde

[60] Mr Shinde provided a witness statement and a statutory declaration. 16

[61] Mr Shinde is the Administrator – Corporate Relations. Mr Shinde’s duties include corporate invoicing, IT peripherals and inventory management.

[62] Mr Shinde had previously received a written warning for sleeping at his desk.

[63] Mr Shinde said swearing in the office and on the site was common, and he accepted he sent a text message to Miss Knight using extremely crude language on 12 December 2016. 17

[64] On 24 January 2017, Miss Knight told Mr Shinde that Mr Fawcett had decided to terminate his employment effective immediately. Mr Shinde asked why his employment was being terminated to which Miss Knight responded that Mr Fawcett did not believe that his skills matched the job requirements. Mr Shinde was dropped off at his house by another staff member to collect the company vehicle. Miss Knight told Mr Shinde that he could work for one more week.

[65] On 25 January 2017, Miss Knight began questioning Mr Shinde about certain payments and requested that he generate a monthly report for January 2017. The report is not generally generated on the last week of the same month as the data is not yet updated. Miss Knight told Mr Shinde that he had no choice but to finish the requirements otherwise he could “Fuck off” – she said this to him in the presence of other staff.

[66] On the evening of 25 January 2017, Mr Fawcett called Mr Shinde and apologised for Miss Knight’s behaviour. 18

Gillian Hodge

[67] Ms Hodge provided a witness statement and a statutory declaration and was granted leave to attend the hearing via telephone. 19

[68] Ms Hodge is a Scheduler at Fawcett Plumbing.

[69] Ms Hodge often heard Miss Knight swearing in front of office staff and technicians, speaking unkindly about Mr Fawcett and Mr Butler and “barked orders” but would never offer assistance. 20

[70] Ms Hodge felt that she had a large workload with little assistance. In January 2017, after returning from a period of sick leave, Miss Knight reduced her hours from 7.5 per day to 5 hours per day.

Nicholas Lambi

[71] Mr Lambi provided a witness statement and a statutory declaration. 21

[72] Mr Lambi is the Business Development Manager at Fawcett Plumbing.

[73] Mr Lambi observed that there had been occasional negative office banter including swearing which he participated in but felt it was unhealthy and non-productive. He gave evidence that Mr Fawcett engages in swearing at the office but not in front of female employees.

[74] During cross-examination Mr Lambi said he had heard Mr Fawcett say ‘if you don’t like it there is the door’ to employees, but that this statement was made in jest.

[75] On numerous occasions, Mr Fawcett had told him that he was going to give Miss Knight an official warning, Mr Lambi assumed that Mr Fawcett had done so.

[76] Whilst Mr Fawcett was overseas in Thailand, he contacted Mr Lambi and informed him that he had seen Miss Knight on the CCTV security cameras arriving to work late and regularly smoking outside in the smoking corner. Mr Lambi did not have a good memory of that discussion.

[77] Mr Fawcett instructed Mr Lambi to have a chat with Miss Knight and to inform her that she was no longer required and could finish up immediately.

Susan Arthur

[78] Ms Arthur provided a witness statement and a statutory declaration. 22

[79] Ms Arthur found the workplace environment to be one of discontent and high tension which improved after Miss Knight was dismissed.

[80] On one occasion she spoke to Mr Butler, the 2IC, regarding a work related issue and was reprimanded by Miss Knight for bothering him.

[81] She was told on a weekly basis by Miss Knight that if she did not perform well that she was likely to lose her position.

Findings of Fact

[82] Fawcett Plumbing employed 27 persons at the time of the dismissal and accordingly the Small Business Fair Dismissal Code does not apply.

[83] It appears to me that the working environment at Fawcett Plumbing was disorganised and the communications were of a robust nature, with four letter words featuring in verbal and electronic communications.

[84] I am not satisfied that Miss Knight’s language towards other staff was outside the ‘norm’ at Fawcett Plumbing. Mr Fawcett also used inappropriate language and it appears that Miss Knight and was not solely responsible for the robust culture at Fawcett Plumbing. That is not to condone the use of such language.

[85] The suggestion that Miss Knight’s management style had an adverse impact on employees was not borne out by the evidence. It appears that performance ‘feedback’ was freely given in a manner which some employees found confronting.

[86] I accept Miss Knight’s contention that she was trying to manage the other employees to perform their tasks, but it appears her management style was abrasive to some. The employees who gave evidence had differing views on what was appropriate conduct in the workplace and some found the robust environment at Fawcett Plumbing and Miss Knight’s management style confronting. The use of dismissal as a motivational tool appears to have been regularly employed by Mr Fawcett who appears to have set the tone. Miss Knight appears to have followed that lead.

[87] In terms of Miss Knight’s lateness, I accept that this occurred but has been explained by her child care responsibilities, and that she was in a self-managed role with some flexibility as to working hours. No information was provided about impact of the late attendances on the business.

[88] With respect to smoking, it appears that Mr Fawcett’s issue was that Miss Knight smoked, rather than the time she spent outside the office, again there was no detail provided as to how the time spent smoking outside the office adversely impacted the business.

[89] Mr Fawcett’s evidence was vague with little detail. I prefer Miss Knight’s evidence as to the discussions had with her by Mr Fawcett concerning her work performance. Whilst Mr Fawcett informally raised issues with Miss Knight, I am not convinced that it was done at the frequency he suggests or in any structured manner which should have been perceived by Miss Knight as performance management.

[90] The frequent use of the threat of dismissal referred to earlier may have reduced Miss Knight’s perception that Mr Fawcett had genuine concerns about her conduct and/or performance.

[91] Whilst Miss Knight may have acted inappropriately towards other employees, or had too many smoke breaks or was late on too many occasions, these concerns were never expressed to her as part of a formal disciplinary process which put her on notice that her role was in jeopardy.

[92] The disciplinary approach taken in respect of Miss Knight appears inconsistent with the approach taken towards other employees. From the evidence it appears that Mr Fawcett has some experience in disciplinary processes as evidenced by issuing written warnings given to employees including Mr Lambi for inappropriate conduct.

[93] The dismissal on 27 January 2017 occurred without prior warning and was conducted through an intermediary. In his closing submissions Mr Fawcett said “I didn’t notify her and I didn’t explain it to her because of being in a position I was in.” I accept that Mr Fawcett may have been impacted by the death of his father-in-law but this does not excuse the absence of any notion of procedural fairness.

Was the dismissal harsh unjust or unreasonable?

[94] Pursuant to s.387 of the Act, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

“387 Criteria for considering harshness etc.

(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

(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.”

Valid reason - s.387(a)

[95] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd23 which requires the reason for termination to be “sound, defensible or well founded.”

[96] In light of the factual findings of fact I have made, I find that the conduct complained of is not sufficient to provide a valid reason for dismissal.

Notification of valid reason - s.387(b)

[97] Miss Knight was not advised of the reasons for her dismissal at the time of dismissal.

Opportunity to respond - s.387(c)

[98] Miss Knight was not provided with the opportunity to respond.

Any unreasonable refusal by the employer to allow Miss Knight to have a support person present to assist at any discussions relating to dismissal - s.387(d)

[99] Miss Knight did not seek a support person, but I note that the lack of notice of the dismissal meeting prevented her from seeking the same.

Warnings relative to unsatisfactory performance - s.387(e)

[100] Whilst Mr Fawcett appears to have informally counselled Miss Knight, no warnings were provided nor were any warnings given which indicated that her conduct or performance placed her employment in jeopardy.

Size of the employer’s enterprise and absence of dedicated human resources support - ss.387(g) and (f)

[101] Fawcett Plumbing does not have dedicated human resources support. I have taken this into account when reviewing the procedural deficiencies identified by the evidence.

Other matters considered relevant - s.387(h)

[102] There are no other relevant matters.

Conclusion

[103] The Explanatory Memorandum to the Act24 explains the approach of the Commission in considering the elements of section 387:

“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”

[104] In Byrne and Frew v Australian Airlines Pty Ltd,25 the following observations made by McHugh and Gummow JJ are relevant to my conclusion:

“It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[105] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the termination of Miss Knight’s employment was harsh, unjust or unreasonable.

Remedy

[106] The relevant provisions of Division 4 of Part 3-2 of the Act state:

“Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) the FWC may make the order only if the person has made an application under section 394.

(3) the FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

…

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.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

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

(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.”

[107] The prerequisites contained in ss.390(1) and (2) of the Act have been met in this case.

[108] Miss Knight did not seek reinstatement and I am satisfied that it is not appropriate in this case.

[109] Section 390 of the Act makes it clear that compensation is only to be awarded as a remedy where the Commission is satisfied that reinstatement is inappropriate and that compensation is appropriate in all the circumstances.

[110] I now turn to whether compensation in lieu of reinstatement is appropriate.

[111] A Full Bench in McCulloch v Calvary Health Care Adelaide26 confirmed, in general terms, that the approach to the assessment of compensation as undertaken in cases such as Sprigg v Paul’s Licensed Festival Supermarket27 remains appropriate.

[112] Section 392(2) of the Act requires the Commission to take into account all of the circumstances of the case including the factors that are listed in paragraphs (a) to (g). Without detracting from the overall assessment required by the Act,28 it is convenient to discuss the identified considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of the employer - s.392(a)

[113] Mr Fawcett did not expressly address this issue but proffered inconsistent positions on this topic.

[114] At one time Mr Fawcett stated that the business was expanding to Melbourne and Sydney and later stated that the business was in debt, with Fawcett Plumbing being behind in WorkCover, superannuation and not having enough money for tax.

[115] In closing submissions Mr Fawcett contended “I don’t have a problem with paying what you think is fair and reasonable” and then “I shouldn’t have to pay anything”.

[116] Based on Mr Fawcett’s closing submission, it appears the Fawcett Plumbing made a $50,000 profit last year.

The length of Miss Knight’s service with the employer - s.392(b)

[117] Miss Knight was employed for just over 6 months. Whilst I note that Miss Knight was previously employed by Fawcett Plumbing, her service under a previous but not contiguous contract of employment is not relevant.

The remuneration Miss Knight would have received, or would have been likely to receive, if she had not been dismissed - s.392(c)

[118] Miss Knight stated she had no desire to leave the employ of Fawcett Plumbing.

[119] Whilst Mr Fawcett had some concerns about Miss Knight’s conduct at work, no formal warning process had commenced.

[120] There is no indication that any external event (e.g. redundancy) would have impacted on Miss Knight’s continued employment.

[121] In the circumstances, I believe it is reasonable to assess compensation in this matter on the basis that Miss Knight would have continued to work for a period of 12 weeks (including notice) had she not been dismissed.

The efforts of Miss Knight to mitigate the loss suffered by her because of the dismissal - s.392(d)

[122] At the time of the hearing, Miss Knight had secured alternative employment. I accept that Miss Knight has appropriately sought to mitigate her loss by seeking and gaining alternative employment, albeit it at a level less than her role with Fawcett Plumbing.

Remuneration earned by Miss Knight during the period between the dismissal and the making of the order for compensation and the amount of any income likely to be earned by Miss Knight during the period between the making of the order for compensation and the actual compensation - ss.392(e) and (f)

[123] Miss Knight had earned $7,980 between 20 February 2017 and 14 May 2017.

Any other matter that the FWC considers relevant and the remaining statutory parameters - s.392(g)

[124] Whilst Miss Knight’s conduct was not without concern, in light of the robust environment at Fawcett Plumbing, I have determined that no discount arises as a result of any misconduct by her.

[125] In accordance with s.392(4) of the Act, I make no allowance for any shock, distress or humiliation that may have been caused by the dismissal.

[126] 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.29 The amount of compensation awarded is less than this limit.

[127] Taxation is to be paid on the amount determined.

[128] I believe that the compensation detailed below is appropriate having regard to all of the circumstances of this matter and the considerations specified by the Act.30

[129] I award compensation in the amount of $4,943.00, which represents the amount Miss Knight would have been paid if she had continued to work at Fawcett Plumbing for a period of 12 weeks following the dismissal subtracting the post dismissal income.

[130] An Order 31 reflecting this decision will be issued.

al of the Fair Work Commission with member’s signature.

COMMISSIONER

Appearances:

M.Kaukas of counsel on behalf of the Applicant.

M.Fawcett on behalf of the Respondent.

Hearing details:

2017.

Adelaide:

15 and 16 June.

1 Exhibit A1

 2   Exhibit A2

 3   Audio transcript 12:40pm

 4   Exhibit A1

 5   Exhibit A2

 6   Contract of Employment dated 8/6/16

 7   Exhibits R1 and R2

 8   Exhibit A7

 9   Exhibit A7

 10   Exhibit R3

 11   Exhibit A5

 12   Exhibit R7

 13   Exhibit R7

 14   Exhibit R7

 15   Exhibit R7

 16   Exhibit R4

 17   Exhibit A4

 18   Exhibit R4

 19   Exhibit R8

 20   Exhibit R8

 21   Exhibit R6

 22   Exhibit R5

23 (1995) 62 IR 371 at 373

24 Explanatory Memorandum to the Fair Work Bill 2008

25 Byrne and Frew v Australian Airlines Pty Ltd [1995] HCA 24

26 [2015] FWCFB 873

27 (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431

28 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446

29 Section 392(5) of the Act

30 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446 at par [32]

 31   PR595406

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