DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mei Kuen Chan
v
Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic
(U2018/10383)

Application for an unfair dismissal remedy – not a small business employer – alleged serious misconduct – misconduct not substantiated – no valid reason – dismissal was unfair – compensation ordered.

[1] Mei Kuen Chan (the applicant) has applied to the Fair Work Commission (the Commission) on 8 October 2018 for an unfair dismissal remedy in accordance with Part 3-2 of the Fair Work Act 2009 (Cth) (the FW Act) in relation to the termination of her employment by Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic (the respondent) with effect from 21 September 2018.

[2] In its initial response to the application, the respondent objected to the application on the basis that it was a small business employer and had complied with the Small Business Fair Dismissal Code.

[3] The parties filed outlines of submissions, witness statements and other evidentiary material in relation to the respondent’s jurisdictional objection and the merits of the substantive application. I held a hearing in Sydney on 29 January 2019, at which the following witnesses gave evidence:

•  The applicant;

•  Mr Qi (Kelvin) Guan (the respondent’s Director);

•  Dr Jun Zhang (a dentist employed by the respondent and Mr Guan’s wife);

•  Mr Shi Chang (a friend of Mr Guan); and

•  Ms Jingjing (Kristal) Liang (a receptionist employed by the respondent).

[4] Following that hearing, the parties filed additional submissions and I held a further hearing on 22 March 2019.

[5] L Saunders, counsel, appeared with V Maroulis, solicitor, for the applicant, and G W McGrath SC appeared with W Shen, solicitor, for the respondent.

[6] On 18 September 2018, the applicant received a letter headed: ‘Employee Termination Letter’. It was signed by Mr Guan and included the following:

‘I am writing this letter with regards to your employment issues.

Based on our investigation and your explanation, we have drawn a conclusion to the account audit.

First of all, the cash accounts prepared by you while you were working in the capacity of practice manager at Mastery Dental Clinic in Hornsby are not accurate. There are the instances of discrepancy between the amount our patients have actually paid and the amount you have recorded in the cash accounts. We have obtained some evidence of such discrepancies.

Secondly, in your response to our earlier warning letter, you stated that Dr. Jun Zhang verbally agreed to give you $200 bonus if the clinic can achieve the weekly $12,000 revenue target. Dr Jun Zhang denies the existence of such agreement. As you have failed to provide any evidence to support your claim, you bear full accountability for unauthorized cash you took from the clinic’s account. The money belongs to the Mastery Dental Clinic.

Thirdly, during the period from May 2017 to February 2018, you took extended leave without any application or approval for such leaves (sic). You should discuss any plans for extended leave and obtain prior written approval from the management team. You made false claim and got yourself paid in full for your extended unauthorized leave.

Fourthly, during the period from April 2018 to 13 June 2018, you took over more than $7,000 cash from the cash account of Mastery Dental Clinic in Hornsby without any authorization or written permission. Your explanation that the money taken is payment for your work is not acceptable.

So far you have not provided acceptable explanation for all the issues mentioned above. The management team of Mastery Dental Clinic hereby requests you return the total of $33,926.39 due to Mastery Dental Clinic within 10 business days of receipt of this letter. This amount includes the so-called $200 bonus for every $12,000 of weekly revenue, the salary that you falsely claimed during the extended leave you took from the period from May 2017 to February 2018, as well as that more than $7,000 you took from the cash account without permission from April 2018 to June 2018. We will also settle any accounts due to you within 3 business days of receipt of payment in full of the above amount from you.

We hereby terminate your employment at Mastery Dental Clinic from the 21^st of September 2018. Mastery Dental Clinic reserves the right to take any further legal action against you for the above-mentioned misconducts.’

Initial matters to be considered before merits

[7] Section 396 of the FW Act specifies that certain matters must be decided before considering the merits of an unfair dismissal application. It is not in contest, and I am satisfied, that the application was made within the required period, the applicant was a person protected from unfair dismissal and the dismissal was not a case of genuine redundancy. It remains to be decided whether the dismissal was consistent with the Small Business Fair Dismissal Code. Section 388(2) of the FW Act provides as follows:

‘(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.’

[8] I first need to determine whether the respondent was, on 18 September 2018, a small business employer. The definition of ‘small business employer’ is provided at s. 23 of the FW Act.

‘23 Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.’

[9] In its initial response to the application, the respondent said that it employed 13 employees at the time of the applicant’s dismissal.

[10] The respondent was directed to file an outline of submissions, witness statements and other documentary material it intended to rely upon in support of its jurisdictional objection by 18 December 2018. On 19 December 2018, the respondent filed an outline of submissions and statements from Mr Guan and Dr Zhang. In its outline of submissions, the respondent said that at the relevant time it employed 14 employees. In Mr Guan’s statement, he asserted:

‘At material time [sic] we have 14 employees in total, full-time employees and part-time employees and casuals’ 1

[11] There were no further details about those employees in either Mr Guan’s or Dr Zhang’s statement.

[12] On 11 January 2019, the applicant filed her witness statement and outline of submissions. In her statement the applicant identified 22 people by name and position that she said were employed by the respondent. 2 Seven people were identified as dentists.

[13] In its submissions in reply filed on 22 January 2019, the respondent merely repeated its assertion that it employed 14 employees at the relevant time. However, it also filed a second witness statement from Mr Guan, which included the following:

‘In fact, dentists are not employees of Mastery Dental Clinics. Here are copies of sub-contracts between the dentists and Mastery Dentists hereby marked as annexure 2.

Rebecca was a part-time employee and left Mastery Dental Clinic and study in University as full-time student in [sic] 05^th August 2018.

Natalie was a part-time employee of Mastery Dental clinic as well and she left her position on 14^th July 2018 and returned to study.

Lawrence Guan, is our company contracted business consultant and is not employee of our company.

Dr Silvia, she also is a subcontractor doctor and she terminated contract with Mastery Dental Clinic in June 2018 and moved to live in Brisbane.’ 3

[14] Annexure 2 to Mr Guan’s second statement consists of extracts from a number of different documents. The first two pages of the annexure appear to be (a small part of) an agreement which purports to be a ‘Contractors Agreement’ in which ‘the Contractor’ (Dental Comprehensive Care Pty Ltd) ‘sends its employee’ Dr Tian Shu Wang (who does not appear to be a person included in the applicant’s list of employees) to work as a dentist to provide dental services at the respondent’s premises. The next two pages appear to be an extract from an agreement which also purports to be a ‘Contractors Agreement’, this time in relation to a dentist whose surname name has been redacted (though his first name, Max, corresponds to one of the people identified by the applicant). This agreement appears, however, to have been made directly with ‘Dr Max’. The next three pages appear to be an extract from a ‘Contractors Agreement’ reached directly between another dentist whose surname has also been redacted. (I note her first name, Ying, does not appear to correspond to any of the people identified by the applicant.) The next four pages of the annexure appear to be an extract of a ‘Contractors Agreement’ made directly between the respondent and a dentist whose first name is Mary (which could correspond to one of the dentists named by the applicant).The last two pages of the annexure appear to be an extract from another document purporting to be a ‘Contractors Agreement’ made directly between the respondent and a dentist, whose first name is Louise (who could be one of the dentists named by the applicant).

[15] None of these extracts appears to represent anything other than a very small part of each document. Two of the pages extracted are ‘tables of contents’, the text of which implies that each document consists of at least 19 pages. Despite the documents being described as ‘Contractors Agreements’, they are very far from amounting to persuasive evidence that the dentists in question are anything other than employees of the respondent. There is virtually no evidence in relation to those factors which one would normally consider in determining whether a person is a contractor rather than an employee, such as the ability to delegate, the basis of payment, the provision of tools and equipment, the allocation of commercial risks, control over the work or the degree of his or her independence.

[16] My doubts about whether the dentists who work for the respondent are genuinely contractors, rather than employees, are reinforced by Dr Zhang’s evidence. Dr Zhang works as a dentist for the respondent. In her statement, she describes herself an employee of the respondent. 4

[17] On balance, I am satisfied that the dentists should be considered as employees of the respondent.

[18] I accept Mr Guan’s evidence that three of the people identified by the applicant no longer worked for the respondent at the relevant time. I also accept that Mr Lawrence Guan was probably a bona fide contractor. However, once one includes the dentists in the applicant’s list of names as employees of the respondent (with the exception of Dr Silvia Liu, who no longer worked for the respondent), it follows that the respondent still did not have fewer than 15 employees at the relevant time. I find that the respondent was not a small business employer. Accordingly, the applicant’s dismissal could not have been consistent with the Small Business Fair Dismissal Code. 5 It is therefore necessary to consider whether the dismissal was harsh, unjust or unreasonable.

The evidence

[19] None of the witnesses was particularly convincing when giving their oral evidence. Dr Zhang and Mr Guan, in particular, made assertions that were clearly contradicted either by documentary evidence or indeed, in some cases, their own written witness statements. Accordingly, most of my findings of fact are primarily based on written documentation, or where oral evidence is clearly supported by written evidence.

[20] The respondent operates two dental clinics in Sydney, one in Hurstville and one in Hornsby.

[21] The applicant (who is known as Tracy) commenced working for the respondent in or around July 2013 as a dental assistant at the Hurstville clinic. In March 2014, she was promoted to Practice Manager of the Hornsby clinic.

[22] The applicant was at this time paid $15 an hour and received 5% commission for all revenues received by the clinic, whether that revenue was received in cash (as much of it apparently was) or not.

[23] I am satisfied that the applicant’s duties included the following:

•  managing daily rosters for employees and dentists;

•  recording working hours of employees and dentists;

•  receiving bills, making payments and maintaining cash records;

•  processing claims with Medicare or private health insurance providers;

•  preparing weekly and monthly revenue reports;

•  purchasing clinic goods and equipment;

•  receiving and holding cash payments;

•  processing cash refunds for clients; and

•  calculating and processing her own commission.

[24] On 16 July 2015, the applicant’s commission increased from 5% to 5.5% of all revenue received from the clinic each month. 6

[25] On 18 June 2016, the applicant’s commission was increased to 5.5% from non-cash payments and 6% from cash payments. 7

[26] The applicant’s evidence is that in or around May 2016, the applicant reached an agreement with Dr Zhang to encourage her to increase the respondent’s revenue. The agreement was that the applicant would be awarded a $200 ‘performance bonus’ for every $12,000 in revenue the clinic generated. 8 This was in addition to her commission. This evidence was hotly contested by the respondent.

[27] Despite the protestations of the respondent’s witnesses (including Dr Zhang), I prefer the applicant’s evidence on this point. This is primarily because of written documentation included in both Dr Zhang’s and Mr Guan’s evidence. In particular, both those witnesses attached to their statements company records, including monthly cash balance reports and tax invoices, clearly indicating the payment to the applicant of the performance bonus, together with the revenue figures on which it was based. 9 It beggars belief that these records were never seen by Dr Zhang and Mr Guan, which means the respondent must have known about and accepted them – at least, at the time they were made.

[28] In June 2017, the applicant informed the respondent she was pregnant. There were complications with the pregnancy; consequently, the applicant took quite a lot of time off work between 17 June and 16 August 2017. The applicant kept Dr Zhang informed via WeChat. There is no evidence that Dr Zhang objected to the applicant taking this time off.

[29] In around November 2017, the applicant indicated to Dr Zhang that she would be going on maternity leave in February 2018, and asked what would happen to her commission. Dr Zhang told her she would continue to receive her commission while she was on leave.

[30] During December 2017, the applicant had further time off from work due to complications with her pregnancy. She continued to keep Dr Zhang informed. 10 Again, there is no evidence that Dr Zhang took any objection to this, or asked for any medical certificates.

[31] On 11 January 2018, Dr Zhang confirmed in writing that the applicant would continue to receive her commission while she was on parental leave, but that it would be reduced by 1.5%. She indicated that she would pay the applicant all the commission from her time on parental leave ‘at one time after you finished your PPL’. 11

[32] On 5 February 2018, the applicant commenced her maternity leave. On 12 February 2018, she gave birth to her child. The applicant was not paid anything at all while she was on maternity leave.

[33] In April 2018, the applicant returned to work part-time. On 12 May 2018, the applicant sent a text message to Mr Lawrence Guan telling him she would be ready to resume full-time work on 1 June 2018.

[34] On 11 June 2018, the applicant completed a Cash Balance Report and left it at reception. This report covered the period from 6 January 2018 to 31 May 2018. It clearly identified the amounts of performance bonus and commission the applicant said she was owed by the respondent (and which had not been paid by her while she was on maternity leave). It included a handwritten note for Mr Qi (Kelvin) Guan asking him to ‘fix’ these payments and to ‘pls pay after 17’. 12

[35] The respondent claimed that the 11 June 2018 Cash Balance Report was in effect a forgery, prepared after the applicant’s dismissal. I do not accept this. The only way it could have been compiled by the applicant was if she had access to the respondent’s cash books. She ceased to have access to these books after 11 June 2018.

[36] On 13 June 2018, Mr Lawrence Guan met the applicant at the respondent’s premises. He handed her the clinic’s cash record book from September 2017 to January 2018 and asked her to account for a $24,000 difference their accountant had allegedly found. She appears to have been stood down without pay from this time onwards.

[37] On 14 June 2018, the applicant attended a meeting with Mr Lawrence Guan and Mr Chang to discuss the alleged discrepancy. It appears that at least part of the discrepancy was due to a disagreement about the quantum of the applicant’s commission – Mr Guan said it should only be 5.5% – and the performance bonus, to which Mr Guan denied she was entitled.

[38] On 14 July 2018, the applicant received a letter from the respondent described as a ‘Warning Letter of Employment’.

[39] This letter included the following:

‘On 13th June, you met with Lawrence Guan. At this meeting you were advised that your conduct in managing the cash accounts had been unsatisfactory. In particular, there were large amount of cash missing in the surgery cash account record. You were advised that the company requested an explanation for this matter.

In the meeting on the 14^th June with Mr Lawrence Guan and Mr Shi Chang you explained that Dr Jun Zhang verbally agreed to give you this bonus. However, Dr Jun Zhang denied this agreement. In addition Mr Lawrence Guan point out that your personal withdrawal of money under incorrect labelling such as ‘expense’ was unsatisfactory.

This is your first warning letter. Your employment may be terminated in July 2018. We seek to resolve this breach in employment conditions further by discussion.

Please reply within 7 days.’ 13

[40] The applicant replied in a detailed letter on 21 July 2018.

[41] The applicant said she had never been given any guidance on how to prepare the cash reports. She had developed her own method and format, which she had been following for more than four years without any question or comment from management. She emphasised that she had printed out these cash accounts and handed them to Mr Guan or Dr Zhang every month. She also asked for details of the allegedly missing amounts.

[42] The applicant then explained how the cash reports were compiled, including that all cash withdrawals are described as ‘expenses’, including customer cash refunds, daily operating expenses, one of the dentists’ cash commission, staff bonuses, cash withdrawals taken by Dr Zhang or Mr Guan, and her own commission and bonus. The applicant further explained the agreements she had with the respondent in relation to her performance bonus and commission. 14

[43] On 10 August 2018, Mr Guan wrote an ‘Employee Warning Letter’ to the applicant rejecting her explanations. This included the statement:

‘One of the key requirements for your position in our practice is to have sufficient account management skill. However, you did state in your letter that “there were no guidelines or trainings to instruct me how to work with cash accounts and prepare so-called satisfactory report in this company.” If you do not have the relevant knowledge, you do not meet the job requirements. As such you are not suitable for this position.’ 15

[44] I find this statement somewhat bizarre, given that it was Mr Guan who had appointed the applicant to the position of Practice Manager, despite her apparent lack of bookkeeping qualifications, and that he had, to that point, accepted her (undoubtedly primitive) accounting methods for four years.

[45] Mr Guan went on to say that Dr Zhang had denied ever agreeing to the performance bonus. He asked for evidence of this agreement. The letter concluded:

‘This is the second letter of warning with regards to your continued employment at Mastery Dental Clinic. Please provide the evidence required as above within 7 days.’

[46] On 13 August 2018, the applicant sent a message asking if she could return to work yet. Mr Guan said the investigation was continuing. On 3 September 2018, the applicant sent an email to Mr Guan asking whether she was still an employee of the respondent, and if so, when she could return to work. 16

[47] On 13 September 2018, the applicant met with Mr Lawrence Guan and Mr Chang at Hurstville RSL. Mr Guan asked if the applicant wanted to add anything. She essentially reiterated what she had put in her email responses.

[48] On 18 September 2018, the applicant received the letter of termination extracted at [6] above.

Consideration

[49] In considering whether I am satisfied that a dismissal is harsh unjust or unreasonable I must take into account the criteria set out in s.387 of the FW Act. These are:

(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.

[50] I will consider each of these criteria in turn.

[51] I first turn to whether the respondent had a valid reason for the applicant’s dismissal based on her capacity or conduct (FW Act s.387(a)).

[52] The evidence in this case is far from clear. This was compounded by the primitive accounting practices used by the respondent. However, I generally accept the applicant’s version of events, especially as it was generally consistent with the written records, such as they are. In particular, I accept that the applicant had an understanding with the respondent that she would receive both commission and a performance bonus, and that these would continue to be paid while she was on maternity leave. The applicant’s practice, accepted and condoned by the respondent over a long period of time, was that she would take this money herself from the respondent’s cash receipts. There was nothing hidden about this. Both the commission and the bonus were included in the monthly cash reports that the applicant gave to the Dr Zhang and Mr Guan. They were also included in the report that the applicant prepared on 11 June 2018.

[53] I do not consider there is sufficient evidence to sustain any of the allegations the respondent made against the applicant. In particular, I am not persuaded that there are any significant, unexplained discrepancies in the cash accounts the applicant had prepared.

[54] Moreover, I accept on the balance of probabilities that Dr Zhang had verbally agreed to pay the applicant a $200 performance bonus for every $12,000 of revenue received per week.

[55] There is no basis for accepting the respondent’s contention that the applicant took unauthorised leave during the period from May 2017 to February 2018. She appears to have kept Dr Zhang informed when she needed to have time off because of complications with her pregnancy. There is no evidence that she failed to meet any requirements for ‘prior written approval’ of that leave.

[56] Finally, I am satisfied that any money the applicant took from the respondent’s cash receipts was money that she was authorised to receive.

[57] Given these findings, I am satisfied that there was no valid reason for the applicant’s dismissal.

[58] I am satisfied that the applicant was broadly notified of the allegations made against her, and that she was given an opportunity to respond. There is no evidence that the applicant was prevented from having a support person present at any relevant meetings.

[59] The process taken by the respondent in effecting the dismissal was broadly consistent with its relatively small size and lack of access to dedicated human resource management specialists or expertise.

[60] I do not consider there are any other matters I should take into account.

[61] Having regard to all these factors, I am satisfied that the dismissal was unjust and unreasonable.

Remedy

[62] The applicant does not wish to be reinstated. The applicant does not appear to have attempted to obtain alternative employment, but I note she has a very young child. I am satisfied that an order for the payment of compensation to the applicant in lieu of reinstatement is appropriate in all the circumstances.

[63] Section 392 of the FW Act provides as follows:

‘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.

[64] The approach to be adopted to assessing compensation was set out by a Full Bench in Humphries:¹⁷

‘[16] The well-established approach to the assessment of compensation under s.392 of the FW Act, taking into account the matters specified in s.392(2), is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul Licensed Festival Supermarket.  This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages. Under that approach, the first step to be taken in assessing compensation is to consider s.392(2)(c) - that is, to determine what the applicant would have received, or would have been likely to receive, if the person had not been dismissed. In Bowden this was described in the following way:

“[33] The first step in this process - the assessment of remuneration lost - is a necessary element in determining an amount to be ordered in lieu of reinstatement. Such an assessment is often difficult, but it must be done. As the Full Bench observed in Sprigg:

‘... we acknowledge that there is a speculative element involved in all such assessments. We believe it is a necessary step by virtue of the requirement of s.170CH(7)(c). We accept that assessment of relative likelihoods is integral to most assessments of compensation or damages in courts of law.’

[34] Lost remuneration is usually calculated by estimating how long the employee would have remained in the relevant employment but for the termination of their employment. We refer to this period as the ‘anticipated period of employment’...”

[17] The identification of this starting point amount “necessarily involves assessments as to future events that will often be problematic”. Once this first step has been undertaken, various adjustments are made in accordance with s.392 and the formula for matters including monies earned since dismissal, contingencies, any reduction on account of the employee’s misconduct and the application of the cap of six months’ pay. This approach is however subject to the overarching requirement to ensure that the level of compensation is in an amount that is considered appropriate having regard to all the circumstances of the case.’ [references omitted]

[65] In this case, the applicant had around five years’ service with the respondent at the time of her dismissal. She had never received any warnings in relation to her performance or conduct. I am satisfied that if she had not been unfairly dismissed, she would have worked for the respondent (her ‘anticipated period of employment’) for at least a further year.

[66] The applicant earned $80,000 per annum plus superannuation. The starting point is therefore $80,000 (plus superannuation).

[67] Remuneration earned from the date of dismissal to the date of any compensation order is required to be taken into account under s.392(2)(e) of the FW Act. Remuneration reasonably likely to be earned from the date of any compensation order to the date the compensation is paid is to be taken into account under s.392(2)(f). Any remuneration likely to be earned after that date to the end of the period of anticipated employment determined for the purpose of s.392(2)(c) is a relevant amount to be taken into account under s.392(2)(g) in accordance with the Sprigg formula.

[68] The applicant has received no earnings since her dismissal. However, while I appreciate she has a young child, I consider that she should be able to earn some money prior to the end of the period of anticipated period of employment. I would deduct $20,000 from $80,000. I also consider that the figure of $60,000 should be discounted by 20% for contingencies, making it $48,000.

[69] The applicant’s length of service is a neutral consideration.

[70] There is no evidence that an order for compensation would affect the viability of the respondent’s enterprise.

[71] I do not propose to make any adjustment because of the applicant’s failure to mitigate her loss.

[72] The applicant did not receive any payment in lieu of notice.

[73] The compensation cap is $40,000 (the applicant’s annual remuneration divided by two).

[74] I do not consider that I should make any discount to the amount of compensation payable because of any misconduct on the part of the applicant. I do not consider there are any other circumstances to which I should have regard. I have not included any amount for shock, distress etc.

[75] I conclude that the respondent should pay the amount of $40,000 plus superannuation as compensation to the applicant. I do not see any reason for this amount to be paid in instalments. An order to this effect will issue separately.

SENIOR DEPUTY PRESIDENT

Appearances:

L Saunders, counsel, with V Maroulis, solicitor, for Mei Kuen Chan.

G W McGrath SC with W Shen, solicitor, for Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic.

Hearing details:

Sydney.

2019.

January 29.

March 22.

Printed by authority of the Commonwealth Government Printer

<PR706631>

 1   Exhibit 5 [5].

 2   Exhibit 2 [61].

 3   Exhibit 6 [16]-[21].

 4   Exhibit 8 [3].

 5   Fair Work Act 2009 (Cth) s.388(2)(a).

 6   Exhibit 5 [17].

 7   Exhibit 5 [18].

 8   Exhibit 2 [19]-[20].

 9   Exhibit 5, appendix 12; exhibit 8, appendix 8.

 10   Exhibit 2, appendix D.

 11   Exhibit 2, appendix E.

 12   Exhibit 2, appendix J.

 13   Exhibit 5, appendix 15.

 14   Exhibit 5, appendix 16.

 15   Exhibit 5, appendix 17.

 16   Exhibit 2, appendices O and P.

17 Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206.