DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ellie Wood
v
Gunbalanya Sports and Social Club
(U2017/9023)

Application for an unfair dismissal remedy – compensation awarded.

[1] On 22 December 2017 I issued a decision 1 in which I found that Ms Ellie Wood (Applicant) had been unfairly dismissed by Gunbalanya Sports and Social Club (Respondent). The Applicant did not seek reinstatement and I determined therefore that I would consider compensation. Ms Wood’s employment was terminated on or around 3 August 2017.

[2] As detailed submissions addressing the relevant provisions of s.392 of the Fair Work Act 2009 (FW Act) in relation to compensation had not been made at the time of hearing the merits case, I issued further directions on 22 December 2017 for the filing of submissions on that matter. Both the Applicant and Respondent have complied with these directions.

[3] The parties have indicated that they are content for the Commission to determine compensation on the basis of the written submissions filed in accordance with the directions.

(a) compensation amount

[4] The Applicant had worked for the Respondent for two years and four months (s.392(2)(a)) at the time she was dismissed (including a period of leave without pay). She worked as a cleaner/bar attendant. Save for the Applicant’s dismissal there were no performance or conduct issues with respect to her employment.

[5] The Applicant submits that, if she had not been dismissed, she would have worked for the Respondent for a further 12 months (“another wet season”). 2

[6] The Respondent says that, whilst it acknowledges that the Applicant ought to be treated independently and separately from her fiancé (who also worked for the Respondent and was dismissed on 9 September 2017), the pair acted jointly on many key employment matters. For example they commenced together, took leave at the same time and returned from leave together. For this reason the Respondent submits that it is reasonable to assume that the Applicant would have left her employment with the Respondent when her fiancé’s employment ended in September 2017. The Respondent submits that there is no basis on which to conclude the Applicant would have remained in employment with the Respondent until the end of the wet season.

[7] The Applicant says that the end of her fiancé’s employment is not a relevant consideration and that it cannot be assumed that she would have left the community and employment when her fiancé finished his employment.

[8] The circumstances surrounding the end of the Applicant’s fiancé’s employment with the Respondent are not clear. The Applicant says her fiancé was dismissed while the Respondent makes vague references to his employment ending “for whatever reason”. 3 Whilst the Applicant and her fiancé clearly are a couple it can reasonably inferred from the Applicant’s submissions on compensation that if her fiancé left the community where they worked so would she. I reach this conclusion because the Applicant laments in her written submissions the adverse effects of their current separation on their relationship, albeit they are living in the same small rural community in Victoria. However, I do not have enough information as to the reasons why her fiancé left his employment with the Respondent to draw a conclusion that the Applicant would have left in late September 2017 if her employment had not been terminated. If, for example, her fiancé’s employment was terminated they may have stayed in the community and the Applicant may have remained in her employment in order to gain some additional income. If her fiancé had left his employment voluntarily it may be presumed this was a joint decision of the couple to leave.

[9] For this reason I am satisfied that the Applicant would have remained employed by the Respondent through to the end of the wet season 2018 had her employment not been terminated (that is, until April/May 2018). I have no reason to find otherwise. Events that occurred consequent to her dismissal that may or may not have occurred because of her dismissal cannot be used to assess what might have happened had she not been dismissed.

[10] I am therefore satisfied that the Applicant would have remained employed until the end of the wet season, which I will take to be end of April, That is, she would have remained employed for a further nine months.

[11] At the time of her dismissal the Applicant was earning $32.00 per hour plus 12% superannuation. The amount she would have been likely to receive had her employment not been terminated is therefore $47,424.00 (s.392(2)(c)).

[12] The Applicant provides no evidence of any earnings since the termination of her employment (s.392(2)(e)).

[13] The Applicant indicated that she and her fiancé have had to relocate back to a “small rural country town” 4 of Chiltern in Victoria where they live apart and have no fixed address.

[14] The Applicant submits that she has applied for three positions, apparently all in social work. (The Applicant has been studying for a qualification in this area.) Two of the positions applied for are in Queensland with the location of the third not specified. The Applicant said she applied for the Queensland positions as she has a “fixed address” in Queensland.

[15] In her reply submission the Applicant says that she and her fiancé “are living separately…we therefore have no fixed address” 5. It is not clear why her lack of co-habitation with her fiancé is indicative that she has “no fixed address” or why it should adversely affect her ability to apply for work. I would note however that, even if the Applicant does not have a fixed address (she does not suggest she is homeless), this does not explain why she has found it “extremely difficult to apply for jobs”.6 Further, the Applicant has chosen to restrict her job search to the social work area in circumstances where she was clearly prepared to work as a cleaner/bar attendant at least for a period of two to three years with the Respondent. I do not suggest she should limit her search to similar work but do not understand the limitation on the work she has been prepared to apply for. This is more so in circumstances where it is not clear she has worked in the field before and where it is not clear that she has completed the studies she was undertaking in this area.

[16] The Applicant suggests that a number of Victorian towns are not within commuting distance of Chiltern and it is therefore unreasonable for her to be expected to apply for positions in those towns. I note however that a number of towns are within commuting distance of Chiltern. The Applicant does not explain why she has not sought work in these towns but rather says she has limited her search for work to Brisbane where she has a “fixed address.” 7

[17] I am not convinced the Applicant has made the appropriate effort to mitigate her loss by seeking alternative employment. She has limited her geographical search to Brisbane (where she currently does not live), has not sought work in and near where she does live, and has limited the work she has sought to that related to her studies in social work. I have therefore decided to reduce the remuneration she would otherwise have received by 40% for this reason (s.392(2)(d)). A person who has been dismissed bears a responsibility to look for work such that at least the financial impact of the loss of employment is minimised. The Applicant has not done so in this case to any reasonable degree.

[18] I have also decided to reduce the amount by a further 15% for general contingencies 8 – that is, for those things that might affect the Applicant’s earning capacity.

[19] The total lost remuneration is therefore $24,186.24 plus superannuation.

(b) reduction for misconduct

[20] The Applicant was not dismissed for misconduct. This is therefore not a relevant consideration.

(c) shock, humiliation and distress

[21] I have not included any amount for shock, humiliation or distress.

(d) compensation cap

[22] The Applicant was earning $32.00 per hour. This equates to an annual salary of $63,232. The relevant compensation cap is $31,616 (being the amount the Applicant would have been entitled to receive in the 26 weeks prior to her dismissal). The amount I have determined to order is less than this amount.

(e) the effect of the order on the viability of the employer

[23] The Respondent has put nothing to me to suggest it could not meet any award of compensation (s.392(2)(a)).

Conclusion

[24] For the reasons outlined above I shall order that the Applicant be paid an amount of $24,186.24 gross plus superannuation.

[25] An order 9 will be issued with this decision requiring the Respondent to make a payment of this amount to the Applicant. The amount is to be paid within 14 days of the making of the order.

COMMISSIONER

Final written submissions:

Applicant: 19 January 2018 and 16 February 2018.

Respondent: 5 February 2018.

<PR600701>

 1   Wood v Gunbalanya Sports and Social Club [2017] FWC 6806.

 2   Applicant’s submissions dated 19 January 2018, para 13.

 3   Respondent’s submission dated 5 February 2018, para 4.

 4   Applicant’s submissions dated 19 January 2018, para 15.

 5   Applicant’s submissions in reply dated 16 February 2018, para 10.

 6   Applicant’s submissions dated 19 January 2018, para 20.

 7   Ibid, para 17.

 8   See Ellawala v Australian Postal Corporation Print S5109.

 9   PR600798.

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