DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brendan Paramore
v
Knight Watch Security Pty Ltd T/A Bluestar Security Services
(U2020/199)

Application for relief from unfair dismissal – dismissal unreasonable – compensation ordered

[1] Mr Brendan Paramore was employed in a senior management role with Knight Watch Security Pty Ltd T/A Bluestar Security Services (Bluestar) from 6 August 2018 until his employment was terminated on 17 December 2019.

[2] On 7 January 2020 Mr Paramore made an application under s.394 of the Fair Work Act 2009 for a remedy, alleging that he had been unfairly dismissed by Bluestar. Mr Paramore seeks reinstatement and compensation.

[3] Bluestar contends that the dismissal was a case of a genuine redundancy.

[4] Section 389 of the Act precludes a person dismissed by reason of genuine redundancy from protection for unfair dismissal. I am therefore required to determine whether Mr Paramore’s dismissal was a genuine redundancy within the meaning of s.389. If I find that it was not a genuine redundancy, the issue then arises for determination is whether Mr Paramore was unfairly dismissed.

[5] The application was heard by video link on 26 May 2020. Mr Paramore was self-represented and Bluestar was represented, with permission, by Mr M Millar, of counsel. Mr Paramore gave evidence on his own behalf and called evidence from Mr G Diamond (Group General Manager of Bluestar). Mr H Davernaris (Company Director) gave evidence for Bluestar.

[6] For the reasons set out below, I find that Mr Paramore’s dismissal was not a case of genuine redundancy, and that he was unfairly dismissed.

Background

[7] Bluestar conducts a business providing security services.

[8] In August 2018 Mr Paramore was offered and accepted a position with the title of State Manager NSW of Bluestar. However the role he actually performed was primarily responsible for business development within NSW. The letter of offer signed by Mr Paramore on 3 August 2018 set out the terms and conditions of his employment which amongst other things provided that either party could terminate the contract by giving one month’s notice. He initially reported to the two Directors of Bluestar, Mr Clarke and Mr Davernaris. Mr Clarke left the business in November 2019 and at the relevant time Mr Davernaris was the sole director of the business.

[9] Mr Paramore’s employment was terminated during a meeting he had with Mr Davernaris on 17 December 2019. Notwithstanding some differences between the parties as to what occurred at the meeting, it is common ground that Mr Paramore was advised of his dismissal with immediate effect and that he would receive pay in lieu of notice and entitlements for redundancy pay.

[10] Following Mr Paramore’s dismissal, Bluestar engaged a Mr Tzanakakis in the position of General Manager NSW. Mr Paramore contends that the job offered to Mr Tzanakakis is substantially the same role that was performed by him prior to his dismissal. Accordingly, Mr Paramore says that the operational requirements of Bluestar had not changed and it still required his job to be performed. Mr Paramore further argues that Bluestar failed its obligation to consult about the redundancy and that it would have been reasonable in all the circumstances to redeploy him to the newly created position.

[11] Bluestar argued that the new position of General Manager differed in various respects from the position occupied by Mr Paramore. In this regard, it submitted that Mr Paramore’s role was one primarily about business development, compared to the new role which was primarily one of operations management.

[12] Bluestar also contended that whether the decision to restructure was a good decision or not is not a part of the consideration as to whether the redundancy was genuine under s.389.

Was Mr Paramore’s dismissal a genuine redundancy

[13] The term ‘genuine redundancy’ is defined in s.389 of the Act:

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

[14] It follows that there are three relevant matters for consideration in determining whether Mr Paramore’s employment was terminated by reason of a genuine redundancy, namely:

1. Did the employer no longer require the employee’s job to be done by anyone because of changes in the operational requirements of the employer’s enterprise;

2. Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement; and

3. Was it reasonable in all the circumstances for the employee to be redeployed in the employer’s enterprise.

[15] The ordinary meaning of redundancy is well established. In R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited 1, Bray CJ stated:

“… the concept of redundancy in the context we are discussing seems to be simply this, that a job becomes redundant when the employer no longer desires to have it performed by anyone. A dismissal for redundancy seems to be a dismissal, not on account of any personal act or default of the employee dismissed or any consideration peculiar to him but because the employer no longer wishes the job the employee has been doing to be done by anyone. ”

[16] The following principals relate to the consideration of whether a redundancy was genuine:

a. Redundancy will not arise where the termination of employment is carried out solely because of any personal act or default of the employee terminated or for any consideration peculiar to that employee. (see Vickery J in Hodgson v Amor Ltd [2012] VSC 94); and

b. The question of the redundancy of an employee does not relate to the personal competence of the employee in the job which he is performing. (see Bright J in R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Cooperative Limited)

Did the employer no longer require the employee’s job to be done by anyone because of changes in the operational requirements of the employer’s enterprise?

[17] I accept that Bluestar restructured its operations and made the positions held by both Mr Paramore and the equivalent role in Victoria redundant. In this regard, his role became redundant as the collection of duties he performed was not required to be performed as part of one role.

[18] I also accept the contention by Bluestar that it is not relevant to the matters I need to decide whether I consider the restructure to be a good business decision or not.

[19] However, in the present matter, the evidence points to the conclusion that Mr Paramore was dismissed on performance grounds. It is clear that Mr Davernaris was dissatisfied with Mr Paramore’s performance.

[20] Mr Davernaris gave evidence that soon after Mr Paramore commenced the position, he formed the view that he was a ‘poor fit’ for the role. Mr Davernaris said that Mr Paramore failed to meet the KPIs for budget sales growth and failed to bring in new opportunities for the business.

[21] Mr Davernaris stated in his evidence that:

“It was clear to me that Mr Paramore was a poor fit for the role. The anticipated business development in Sydney did not occur.

I considered terminating Mr Paramore’s employment soon after his appointment, and in November 2018 I corresponded with the recruitment consultant who had put his name forward about sourcing another candidate for the Business Development Manager role in NSW.

My focus however at that time was on managing the departure from the business of my then business partner, and Mr Paramore continued on in his employment.

I can recall one day in particular when he was expected to be working and it turned out that he was at the beach, and another occasion when he wore shorts to a business meeting. He was rarely visiting customers or even telephoning them, and when he did so, was not winning new business. One of our larger Sydney clients, RPA Hospital, refused to deal with him. We needed focused attention on business development, and Mr Paramore was not providing it.

I had spoken to Mr Paramore on numerous occasions about the failure to generate new business for the company. In the 12 months before the termination, I spoke to Mr Paramore in at least four separate telephone discussions relating to a failure to achieve new sales growth targets set out in his employment contract and the need for immediate improvement.”

[22] Mr Davernaris stated that after the exit of his business partner in November 2019, he turned his attention to considering how the business development needs could be better delivered. He said that Bluestar had two business development employees within the organisation, being Mr Paramore and another Melbourne based Business Development Manager who had joined the business at about the same time as Mr Paramore. Mr Davernaris said that the recruitment of them was part of a strategy to focus on developing the business in both Victoria and NSW, but he considered that strategy was not working and decided to discontinue both business development roles. He also made the decision to devote himself to performing more of the business development function, together with recruiting a National Business Development Manager. This position would allow business development to be co-ordinated at a national level, without the need for the State-based roles being performed by Mr Paramore and the other employee.

[23] On Mr Davernaris’ own admission, it was due to his concerns pertaining to Mr Paramore’s unsatisfactory performance which led to his decision to restructure the business. He was cross examined in the context of the circumstances leading to Mr Paramore’s dismissal and said:

“The purpose is because you weren't performing Brendan. I mean we had had several discussions, the lack of activity that were actually providing. I wasn't getting weekly reports. Guess what, I was getting weekly reports from everybody else including Jonathan Beckett but you weren't certainly providing. I tried communicating with you several times and you know what, it didn't matter verbally or even email you were very rude. I have (indistinct), and you made it very clear to a lot of people that you know what, you didn't want to work for the company. You made it very clear that we had a very dodgy EBA, which you've mentioned several times in conversations. The activity was not there, I mean you know, with the weekly reports I was able to identify what your activities were for the week. I got nothing from you, Brendan, so yes, due to the lack of activity that you were actually providing the business you gave me no other option. And plus we were going backwards as you know, I had a dispute with my business partner back then, Stephen Clark, but also going through the figures with my accountant we were actually losing. So at the end of the day I was forced to restructure the business.” 2

[24] When asked if the dismissal was for performance reasons, Mr Davernaris said:

“Redundancy. It was actually a restructure altogether. It was a redundancy, let's get it right Brendan. I made your position redundant. I wasn't getting an investment - a return on my investment, I couldn't communicate, the relationship was coming to that breaking point between us. You were turning - seriously, you were turning up to meetings in shorts where you should have been working. It came to my attention, Brendan, it came to my attention that you know what you were actually spending time at home and you know what if you look at your contractual obligations with us, in the contract, you should have been working at the office and that's (indistinct). We didn't specify for you to work from home, okay? There was actually people come - or I had a manager tell me that you were actually going to the beach and there was also times you were going to gym and when I did make the position redundant, I took over your telephone, guess what? The evidence was sitting in the phone, you should have been working.” 3

[25] Bluestar submitted that there were ‘changed business needs’ and as a result Mr Paramore’s position became redundant and a new role was created that was filled by Mr Tzanakakis. It contended that the collection of functions that Mr Paramore had performed was no longer required, and accordingly Bluestar satisfied the requirement that it no longer required the job performed by Mr Paramore to be performed by anyone.

[26] Based on the evidence before me, I am satisfied that Bluestar no longer required Mr Paramore’s job to be performed by him. Both Mr Paramore and the employee in an equivalent position in Victoria were both made redundant as a part of the restructure of the business. Two new roles were created, one being a national business development role, and the other being the General Manager NSW role which was offered to Mr Tzanakakis the day after Mr Paramore was made redundant.

[27] However, as outlined above, it is also clear and I find that the reason for the restructure, and hence the redundancy, was Mr Davernaris’ dissatisfaction with Mr Paramore’s performance. This supports a finding that the redundancy was not a genuine redundancy within the meaning of s.389 of the Act.

Has the employer consulted in accordance with the consultation provisions of a relevant modern award or enterprise agreement?

[28] Given the nature of Mr Paramore’s employment, I do not consider that any modern award has application or coverage in relation to the work he was engaged to perform. There is no dispute that he was not covered by an enterprise agreement. I am therefore satisfied there is no applicable industrial instrument which imposes an obligation to consult about redundancy.

Was it reasonable in all the circumstances for the employee to be redeployed in the employer’s enterprise?

[29] As set out earlier, s.389(2) provides that a person’s dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise.

[30] Mr Paramore said that at the time he believed his dismissal was a genuine redundancy but had subsequently learned that Bluestar offered employment to Mr Tzanakakis the day after he was dismissed. Mr Paramore contended that it would have been reasonable to redeploy him to that newly created position.

[31] Bluestar submitted that there were no other positions available for redeployment to which Mr Paramore could have reasonably been redeployed and that Mr Paramore was not suited to the newly created positions. This was put on the basis that Mr Paramore had demonstrated he was not suited to a senior leadership role within the business based on his performance.

[32] The evidence given by Mr Davernaris in cross examination made it abundantly clear that he considered Mr Paramore to be underperforming in his role, and that the relationship between them had ‘soured’. Mr Davernaris said that he didn’t consider Mr Paramore for the newly created role because of his performance. 4

[33] In cross examination, Mr Davernaris conceded he did not explore with Mr Paramore whether he may have had the skills, experience or qualifications to perform the newly created role (including his qualification of a Masters of Business Administration) because of his view of Mr Paramore’s performance.

[34] Considering the evidence in this regard, I find that Mr Paramore should have been considered for the newly created role of General Manager NSW. Mr Paramore’s evidence, which was not disputed, was that he did have the skills and experience to perform the newly created role which was offered to Mr Tzanakakas the day after his dismissal.

[35] I also find that Mr Paramore was not considered for this role because Mr Davernaris was discontented with his performance and the relationship between the two had broken down.

[36] For the above reasons, I find that it would have been reasonable in all the circumstances for Mr Paramore to be redeployed within the employer’s enterprise.

[37] Given my findings that the requirements in s.389(1)(a) and (2) were not met, I am therefore satisfied and find that Mr Paramore’s dismissal was not a case of genuine redundancy.

[38] I now turn to consider whether the dismissal was unfair.

Consideration

Protection from Unfair Dismissal

[39] Having found that Mr Paramore’s dismissal was not a genuine redundancy, I am satisfied that he is a person protected from unfair dismissal by virtue of s.382 of the Act.

Was the dismissal unfair?

[40] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[41] It is clear in this case that Mr Paramore was dismissed and that subsection (c) does not apply. I have also concluded that the dismissal was not a case of genuine redundancy (ie. subsection (d)).

[42] I now turn to consider whether the dismissal was harsh, unjust or unreasonable.

Was the dismissal harsh, unjust or unreasonable?

[43] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

(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.

[44] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd⁵ as follows:

‘... It may be that the termination is harsh but not unjust or 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.’

[45] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.⁶

Valid reason - s.387(a)

[46] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”⁷ and should not be “capricious, fanciful, spiteful or prejudiced.”⁸ However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.⁹

[47] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.¹⁰ The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.¹¹

[48] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

[49] Mr Paramore denied any performance issues and rejected Bluestar’s claim that he acknowledged his failure to have achieved sales targets. He disputed that during his employment there was no increase in sales growth for the company. In support of his claim, Mr Paramore set out the details of the sales figures of various projects which he contended demonstrate sales growth.

[50] The parties are in dispute as to whether Mr Paramore was given any warnings that his performance was unsatisfactory or that he was informed his employment was in danger of being terminated for unsatisfactory performance.

[51] Having considered all of the evidence in this regard, I am not satisfied that there was a valid reason for Mr Paramore’s dismissal. There is simply no evidence that supports a finding that his performance was sufficiently poor as to constitute a valid reason for his dismissal.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[52] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,¹² in explicit terms¹³ and in plain and clear terms.¹⁴ In Crozier v Palazzo Corporation Pty Ltd¹⁵ a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”16

[53] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern.¹⁷ This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.¹⁸

[54] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Paramore before his dismissal was effected.

[55] Bluestar argued it had advised Mr Paramore via email and verbally that his performance “wasn’t living up to expectations”. Accordingly, it argued, he had the opportunity to do something about Bluestar’s concerns.

[56] I am not satisfied that Mr Paramore was told in clear and explicit terms that his employment was in jeopardy if he did not rectify the concerns held by Mr Davernaris. He was advised at the time of his dismissal that he was dismissed because his position was made redundant. Accordingly, I find that Mr Paramore was not given an opportunity to respond and accordingly was not afforded the procedural fairness required by the Act.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[57] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[58] Mr Paramore was not provided with the opportunity to have a support person.

Warnings regarding unsatisfactory performance - s.387(e)

[59] A warning for the purposes of s.387(e) must clearly identify:

(a) the areas of deficiency in the employee’s performance;

(b) the assistance or training that might be provided;

(c) the standards required; and

(d) a reasonable timeframe within which the employee is required to meet such standards.¹⁹

[60] The warning must also “make it clear that the employee’s employment is at risk unless the performance issue identified is addressed.”²⁰

[61] I am not satisfied on the evidence that Mr Paramore was appropriately warned regarding his alleged unsatisfactory performance and that it was made clear to him that his employment was at risk if the performance issue was not addressed.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[62] I consider the size of Bluestar and the absence of dedicated human resource expertise may have impacted on the procedures followed by it in effecting the dismissal.

Other relevant matters - s.387(h)

[63] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[64] I do not consider there are other matters that require consideration under this subsection.

Conclusion as to unfairness

[65] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am satisfied that the dismissal of Mr Paramore was unreasonable, and accordingly unfair.

[66] I now turn to the appropriate remedy.

Remedy

[67]  Having found that Mr Paramore was protected from unfair dismissal, and that his dismissal was unfair, it is necessary to consider what, if any, remedy should be granted to him.

[68] Mr Paramore seeks the remedy of reinstatement. I am satisfied that reinstatement is inappropriate in this matter. Apart from the obvious fact that his former position no longer exists, it was clear from the interaction between Mr Paramore and Mr Davernaris during the cross examination of Mr Davernaris that the relationship between the two was not one that could be repaired. Mr Paramore suggested that Mr Davernaris was a liar, and Mr Davernaris clearly disliked Mr Paramore. Given his former position was a senior executive role, it would be inappropriate to reinstate Mr Paramore.

[69] Under section 390(3) of the Act, I must not order the payment of compensation to Mr Paramore unless:

a. I am satisfied that reinstatement is inappropriate; and

b. I consider an order for payment of compensation is appropriate in all the circumstances of the case.

[70] I am satisfied in this case that an order for the payment of compensation is appropriate, for the same reasons that I have found Mr Paramore’s dismissal was unfair.

[71] Section 392(2) of the Act requires all of the circumstances of the case to be taken into account when determining an amount to be paid as compensation including:

a. the effect of the order on the viability of Bluestar;

b. the length of Mr Paramore’s service;

c. the remuneration that Mr Paramore would have received, or would have been likely to receive, if he had not been dismissed;

d. the efforts of Mr Paramore (if any) to mitigate the loss suffered by him because of the dismissal;

e. the amount of any remuneration earned by Mr Paramore from employment or other work during the period between the dismissal and the making of the order for compensation;

f. the amount of any income reasonably likely to be so earned by Mr Paramore during the period between the making of the order for compensation and the actual compensation; and

g. any other matter that the Commission considers relevant.

[72] In determining an amount to be paid as compensation, and as was noted by a Full Bench, “[t]he well-established approach to the assessment of compensation under s.392 of the FW Act … is to apply the “Sprigg formula” derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket (Sprigg).²¹ This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages²².

Step 1: Estimate the remuneration the Applicant would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).

Step 2: Deduct monies earned since termination.

Step 3: Discount the remaining amount for contingencies.

Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.”

Remuneration received, or likely to be received (s392(2)(c))

[73] While the evidence in this regard is limited, and while there is clearly an element of speculation in determining specifically how long Mr Paramore would have remained employed, I consider that it is likely that Mr Paramore’s employment would have continued for no more than 16 weeks, given Mr Davernaris’ stated concerns regarding his performance.

[74] Mr Paramore’s gross weekly earnings, as evidenced by his final payslip, was $2,307.74 per week (based on his hourly rate of $60.73 multiplied by 38 hours). Had he remained employed for 16 weeks, he would have received $36,923.84.

Remuneration earned and income likely to be earned (s392(2)(e) and (f))

[75] Mr Paramore had not found alternative employment as at the conclusion of the hearing. He did receive 8 weeks’ pay at the time of his dismissal, being 17 December 2020. Mr Paramore gave evidence that received the JobSeeker payment of $550 per fortnight from 23 March 2020, which increased to $1,100 per fortnight from 27 April 2020.

[76] Mr Paramore was paid for eight of the sixteen weeks he was likely to remain employed. Mr Paramore received 2.2 weeks of JobSeeker payment (equivalent to $605) during the 16 week period relevant for this calculation. Eight weeks at full pay is $18,461.92. In total, sixteen weeks’ pay, less the eight weeks already paid and less the income earned, gives a total of $17,856.92

Length of service (s392(b))

[77] Mr Paramore had been employed for a relatively short period of time, however I consider it does not support reducing or increasing the amount of compensation ordered.

Viability (s392(a))

[78] There is no direct evidence before me as to the effect of an order for compensation might have on the viability of Bluestar.

Mitigation efforts (s392(d))

[79] Mr Paramore gave evidence of the efforts he had made to find alternative employment. This was a reasonable effort to mitigate his loss. I do not consider it appropriate to reduce the amount of compensation otherwise calculated for this factor.

Other relevant matters (s392(g))

[80] There are no other matters relevant to this consideration. Specifically, I do not consider it necessary to discount or increase the amount for ‘contingencies’. This step is a means of taking into account the possibility that the occurrence of contingencies to which Mr Paramore was subject might have brought about some change in earning capacity or earnings.

Misconduct (s392(3))

[81] Misconduct is not a relevant factor in this matter.

Shock, distress etc (s392(4))

[82] The amount of compensation does not include a component for shock, humiliation or distress.

Compensation cap (s392(5) and (6)

[83] The amount of $17,856.92 is less than the amount of remuneration Mr Paramore was entitled in his employment with Bluestar during the 26 weeks immediately before the dismissal. I am satisfied there is no basis to reduce the amount by reason of s 392(5) of the Act.

Conclusion

[84] In my view, the application of the Sprigg formula does not yield an amount that is clearly excessive or inadequate.

[85] For the reasons outlined above, I am satisfied that a remedy of compensation in the amount of $17,856.92 less appropriate taxation in favour of Mr Paramore is appropriate in the circumstances of this case. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

B Paramore, on his own behalf.
M Millar of counsel for Knight Watch Security Pty Ltd T/A Bluestar Security Services.

Hearing details:

2020.
Sydney (By video):
May 26.

Printed by authority of the Commonwealth Government Printer

<PR722020>

 1   (1977) 16 SASR 6.

 2   Transcript PN62.

 3   Transcript PN63.

 4   Transcript PN611.

5 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

6 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

7 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

8 Ibid.

9 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

10 Edwards v Justice Giudice [1999] FCA 1836, [7].

11 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

12 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

13 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

14 Previsic v Australian Quarantine Inspection Services Print Q3730.

15 (2000) 98 IR 137.

16 Ibid at 151.

17 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

18 RMIT v Asher (2010) 194 IR 1, 14-15.

19 McCarron v Commercial Facilities Management Pty Ltd t/a CFM Air Conditioning Pty Ltd [2013] FWC 3034, [32].

20 Fastidia Pty Ltd v Goodwin Print S9280 (AIRCFB, Ross VP, Williams SDP, Blair C, 21 August 2000), [43]-[44].

21 (1998) 88 IR 21.

22 [2013] FWCFB 431.