DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phillip Coffey
v
QBar Darwin Pty Ltd
(U2017/2851)

Application for unfair dismissal remedy – applicant unfairly dismissed – remedy – compensation ordered.

[1] On 24 August 2017 I issued a decision 1 in which I found that Mr Phillip Coffey had been unfairly dismissed from his employment with QBar Darwin Pty Ltd (QBar). In that decision I indicated that I did not consider reinstatement appropriate and that I would take further submissions from the parties as to compensation as remedy for the unfair dismissal.

[2] Both Mr Coffey and QBar have filed further submissions in accordance with the directions issued by me. Both parties have indicated that they do not seek to be further heard on the question and are content for the Commission to determine compensation on the basis of submissions filed.

[3] Section 392 of the Fair Work Act 2009 (FW Act) states:

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.

Consideration

[4] Mr Coffey submits that he would have remained employed by QBar for at least the next two years.

[5] Mr Coffey says that his most recent period of employment was for 18 months but he had worked previously for the owner of QBar for a total of “3.5 years”. He says that he had no plans to leave his employment, he is young and he had enjoyed his work at QBar. Further, he says that he had previously had a good relationship with his employer.

[6] Ms Kristie Foreman, the Managing Director of QBar, agrees that Mr Coffey’s most recent period of employment was 18 months.

[7] Ms Foreman submits that the evidence in hearing of the substantive application indicates that Mr Coffey was not happy in his position. In particular that Mr Coffey indicated that he was not interested in mediation as a means of resolving issues with respect to cultural exclusion at work and indicated to Ms Foreman that he was at work “to do my job not to make friends”. 2 Ms Foreman also relies on social media posts of Mr Coffey tagged with “#bringontheweekend” and suggests that, in these circumstances it is apparent Mr Coffey was not enjoying himself at work.

[8] Whilst I accept that Mr Coffey has worked for QBar for three and a half years I am not convinced that he would have remained there for an extended period of time had his employment not been terminated. Mr Coffey’s employment was terminated for reasons including that he said of a co-worker “she can be a racist bitch”. 3 This incident occurred after Mr Coffey had made complaints to Ms Foreman over what he saw as cultural exclusion in the workplace – that is he sensed the Estonian staff were being favoured in the hours of work and shifts offered. Mr Coffey shunned attempts to have this issue and his comments about his co-worker mediated.

[9] Mr Coffey clearly considered that “bad behaviour” was being shown to him 4 and stated that he was “not sorry for what I said as it is how I feel watching everything go on in this place over the last year and it’s not right.”5

[10] Mr Coffey was obviously frustrated with what he thought was happening at work and was not happy. This does not suggest he would have remained at work for an extended period of time. These matters that were effecting him would not have gone away had his employment not been terminated. They would still face him each day and would need to be dealt with.

[11] It was clear from the evidence of Ms Foreman that she considered the staff of whom Mr Coffey complained to be skilled and capable of doing their jobs. It was not apparent that their jobs were under threat. For Mr Coffey to have remained employed at QBar he would have to reach some agreed accommodation or understanding with other staff, including those he accuses of social exclusion. He gave no indication that he was interested in doing so. For these reasons I am satisfied that he would not have remained in employment at QBar for more than a further four months (17 weeks) – that is, he would have remained employed by QBar until 7 July 2017.

[12] In calculating lost remuneration it is Mr Coffey’s remuneration at the time his employment was terminated that is relevant.

[13] The evidence before the Commission is that Mr Coffey was earning $26.4423 per hour and, in the period prior to his dismissal, worked 40 hours per week.

[14] Whilst I accept that, as a casual employee, Mr Coffey’s hours were not guaranteed I am satisfied that the hours he worked for the month prior to his dismissal provides a good indicator of the hours he would have worked had he remained in employment but, in any event, any adjustment for a reduction in hours should be made through an adjustment for contingencies (see below). I am therefore satisfied that Mr Coffey’s lost remuneration is $17,980.76.

[15] I have reduced this amount by 20% for contingencies. Mr Coffey is a healthy young man and there is no reason to think that illness would affect him substantially although I have taken into account that he would not be paid for any absences from work. I have, however, taken into account the evidence in the hearing on the merits of the application of Ms Foreman that the business is struggling financially and there has been a reduction in shifts offered to staff. My Coffey, had he remained in employment, would have been affected by such a reduction.

[16] Mr Coffey’s lost remuneration is therefore $17,980.767-20% = $14,384.61.

[17] Mr Coffey’s evidence is that, since the termination of his employment on 7 March 2017, he has had two jobs, one from 17 March to 24 July 2017 at Penny’s Fancy Dress and a further position at Beauty of Tatum which commenced on 20 March 2017 and is continues. It is trite that, in assessing his lost remuneration I should only consider his earnings from alternative employment up until the date I consider he would have remained at QBar.

[18] Mr Coffey’s income since his departure from QBar for the period I say he would have remained employed at QBar is:

● Penny’s Fancy Dress (17 March 2017 – 7 July 2017):	$5,949.00 + 453.26 6
● Beauty of Tatum (20 March 2017 – 7 July 2017):	$2,071.00 + 342.96 7
● TOTAL	$8,816.22

[19] Mr Coffey did not receive any payment in lieu of notice as he was a casual employee.

[20] Mr Coffey’s lost income is therefore $14,384.58 - $8,816.22 = $5,568.39.

[21] I am satisfied that Mr Coffey has sought to mitigate his loss. He found work within ten days of his dismissal and, for some time, worked two jobs. I do not intend to discount the amount I would otherwise award because of a failure to mitigate his loss.

[22] The FW Act requires that if I am satisfied that Mr Coffey’s misconduct contributed to the employer’s decision to dismiss the person, then I should reduce the amount I would otherwise order.

[23] I am satisfied that Mr Coffey’s misconduct contributed to the decision of Ms Foreman to dismiss him (in that she ceased to offer him shifts). His language in relation to another staff member, his actions in talking to customers about the issues at work and his refusal to engage with Ms Foreman about the issues in dispute lead me to conclude that the amount of compensation I would otherwise award should be reduced by 30%.

[24] The amount of compensation I will award is therefore $5,568.39 – 30% = $3,897.87.

[25] There are no other matters to consider. The amount I have decided upon is below the compensation cap.

[26] Ms Foreman submits that the business is under financial stress. She submits that she has reduced the shifts rostered as a means of reducing the financial burden on the business. Ms Foreman requests that this be taken into account. Mr Coffey submits that he has no knowledge of the effect of any order on the viability of the business.

[27] I am not satisfied that the amount I will order will adversely affect the viability of the business. It is not substantially above the amount Ms Foreman submits is reasonable compensation.

[28] I shall therefore order that QBar Pty Ltd pay to Mr Coffey an amount of $3,897.87 taxed according to law plus 9.5% superannuation. The amount shall be required to be paid within 21 days of the date of the order. The order 8 will issue in conjunction with this decision.

COMMISSIONER

 1   Phillip Coffey v QBar Darwin Pty Ltd, [2017] FWC 4312.

 2   Exhibit A1, attachment PC7.

 3   Exhibit A1, paragraph 21.

 4   Ibid

 5   Exhibit A1, attachment PC8.

 6   Mr Coffey worked until 24 July 2017 for Penny’s Fancy Dress. I have taken a third of the amount earned for the period 1 – 24 July 2017 as a reasonable approximation of payment until 7 July 2017.

 7   Mr Coffey provided a statement of earnings for the period 1 July 2017 – 27 August 2017. This equates to 7.3weeks at a rate of $342.96 per week. I have used this amount as an estimate of his weekly earnings.

 8   PR596425.

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<Price code C, PR596420>