Fair Work Act 2009_

s.394 - Application for unfair dismissal remedy

Summary: unfair dismissal application - jurisdictional objection on minimum employment period dismissed - Respondent did not appear - matter heard in his absence - s.600 - reliance on Applicant's materials only - procedural fairness - mitigation - Applicant's evidence bearing on judgment as to anticipated period of further employment - deduction for limited efforts to mitigate losses - no wish for further 'employment'.

[1] This is an application by Mr Andrew Campbell ("the Applicant") who is seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 ("the Act") in relation to his dismissal by his employer Groovy Freighters Pty Ltd on 17 September 2013.

[2] It is necessary, firstly, to step out the process by which this matter came to hearing.

[3] The application was originally subject to a conciliation conference that was intended initially to be conducted in December of 2013. The conciliation conference, listed for 13 December 2013, did not take place owing to the unavailability or non-appearance of the Applicant, it would appear.

[4] A second conciliation conference did not go ahead on 22 January 2014 because the Respondent stated that he had not received the Form F2 from the Applicant and didn't know what the Applicant's issues were. Despite appearing to have attended at the first conciliation conference on 13 December 2013 the Respondent was not provided a copy of the form F2. This much is suggested from the file notes retained on the file by the centralised administrative body that facilitates listings and initial interactions with parties.

[5] A third attempt at conciliation failed because the Applicant was unable to be contacted. It appears that two messages and three telephone calls were left for him that he did not respond to them. The Respondent apparently sent through a Form F3 on the morning of the conference, which was set down for 29 January 2014.

[6] Following these three unsuccessful attempts to conduct a conciliation conference, the application was referred for arbitration on 30 January 2014.

[7] In this regard, the parties in this matter were provided a notice of listing on 12 February 2014 for an arbitration hearing on Wednesday and Thursday and Friday 14 and 15 and 16 May 2014.

[8] That is, the parties were provided with three-month notice of the hearing.

[9] It appears that on 4 March 2014 efforts were made to contact the Applicant for reasons of non-compliance with the directions timetable.

[10] On or about 6 March 2014 the Applicant filed his submissions and the listing of a non-compliance hearing was cancelled, as a consequence.

[11] At that time the Respondent had been in communication with administrative personnel within the Fair Work Commission. In that communication it would appear that the Respondent agitated a jurisdictional objection to the application relating to the minimum employment period (despite having provided information in the initial form F3 that was contrary to such a claim). The Respondent also suggested that it "wouldn't take much part in the process".

[12] Notwithstanding this closing comment as noted, the Respondent filed a Form F4, "objection to application for unfair dismissal remedy" on 6 March 2014. In that form F4 the Respondent stated that the Applicant had been employed for only 20 weeks, Groovy Freighters had only 10 employees (as opposed to the 19 employees referred to in the form F3) and that the Applicant had abandoned his position with no contact over two weeks following an accident.

[13] Following this development the file notes demonstrate that a conversation was had with the Applicant on 12 March 2014 in which the amended listing and directions were explained to him in the context of the Respondent having filed an objection to the application for unfair dismissal remedy.

[14] Subsequently, a message was left for the Respondent on 28 March 2014 regarding the overdue submissions in relation to his jurisdictional objection.

[15] No material has been received from the Respondent subsequently.

[16] This is not to say that the matter fell into abeyance the parties or that the parties were unaware of the listing dates.

[17] The parties received another listing on 6 March 2014 affirming the arbitration dates to which I have referred earlier. This second listing occurred following the cancellation of non-compliance proceedings.

[18] A further listing was received on 12 March 2014 in which the listing was amended to include a jurisdictional objection raised by the Respondent. The matter remains listed for the same dates, but for determination of the jurisdictional component of the procedure along with the arbitration procedure.

[19] On 30 April 2014 a further notice of listing was provided in which there was an amendment to the original notice of listing. The effect of the notice of listing of 30 April 2014 was to reduce the number of hearing days from 3 days to one-day. The hearing was now to proceed on Thursday 15 May 2014 (only). This was one of the days scheduled for the jurisdiction/arbitration as had been originally listed and confirmed at earlier times.

[20] Upon allocation of the file to me for the arbitration roster in May 2014, the absence of any materials from the Respondent became obvious. An e-mail was sent to the Respondent on 13 May 2014 in the following terms:

Re: U2013/14309 Campbell v Groovy Freighters Pty Ltd

I refer to the hearing of the above matter set down for Thursday 15 May 2014 at 10am. You will have received a notice of listing in this respect.

Senior Deputy President Richards notes that no material has been filed by you - the Respondent.

The Respondent is contending that Mr Campbell (the Applicant) is unable to make his application because he has not served the minimum period of employment, which you allege is 12 months of continuous service.

In order to establish whether or not this claim can be made out the Senior Deputy President requires the following from you prior to the hearing:

• a copy of your payroll at the date on which Mr Campbell's dismissal took effect on 17 September 2013 (what appears to be the date the dismissal took effect). This will enable the Senior Deputy President to establish whether you employed fewer than 15 people at that time. Set out below is s.23 of the Act, which shows you how to calculate the number of employees at the relevant time.

• material (business documents such as a signed contract of employment, payroll receipts, time and wages documents, and/or statutory declarations ) that can demonstrate that the period between Mr Campbell commencing work and his dismissal taking effect was less than 12 months.

Please ensure this material is also copied to Mr Campbell.

Should your objection on the above grounds not be made out the matter will be heard for the purposes of arbitration. That is, the hearing will concern whether or not the dismissal of Mr Campbell was harsh, unjust or unreasonable in all the circumstances. Evidence will need to be taken orally from both parties in respect of this matter at the time of the hearing. So far as I understand your case from the Applicant's materials, you will be contending that you outsourced the Applicant's role as a cost saving measure and that as a consequence the Applicants roll was made redundant.

Please advise the Commission promptly if you are not intending to appear at the hearing on Thursday of this week. If you do not attend the hearing on Thursday then Senior Deputy President Richards will determine the matter from the materials that are before him at that time (which may mean in effect that there will be an adverse finding made in relation to your business).

The Senior Deputy President looks forward to hearing from you before close of business tomorrow (14 May) so that he (along with the Applicant) can examine the materials in support of your objection to the application proceeding.

As referred to earlier, set out below are the relevant legislative provisions for you to examine if you have not already done so:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Note: High income threshold indexed to $129,300 from 1 July 2013

(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(b) if the employer is a small business employer - one year ending at that time.

(1) An employee's period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(a) a period of service as a casual employee does not count towards the employee's period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee's period of employment with the new employer.

Section 23 of the Act:

(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.

[21] No response to the email above was received.

[22] On 14 May 2014, my associate sought to contact Mr McDonnell and to confirm the Respondent's intentions in relation to its appearance at the hearing on 15 May 2014, the next day. The information conveyed to my associate was that the Respondent, Mr McDonnell, was travelling to Sydney on the day of the hearing (15 May 2014) and was unaware that the matter was proceeding.

[23] Mr McDonnell did not appear on 15 May 2014, the day of the hearing. The Applicant did appear at this time.

[24] The hearing was adjourned so that attempts could be made to telephone the Respondent to ascertain his intentions in relation to the preceding, but these endeavours were fruitless. Mr McDonnell's mobile telephone rang out when he was called. A message was left on the answering machine at the place of business, seeking urgent contact be made with the Commission. There was no response to the phone message or any other contact by the Respondent at the time of the publication of this decision (about 10 days after the hearing).

[25] Generally, this is a matter that has had a long and regrettable history. The application was made on 8 October 2013. The parties jointly have not at all times conducted themselves with any concern for process or protocols.

[26] But Mr McDonnell's failure, finally upon the matter coming to hearing, to provide any material support for his jurisdictional objection is a matter of serious concern. Messages have been left for him previously in this respect and I have agitated the very same matter with him by a lengthy e-mail replicated immediately above.

[27] In my view there has been a sufficient opportunity for the Respondent to take advantage of its procedural opportunities to make out its claim. Having failed to take advantage of those opportunities I can only infer that there is no material basis to the objection and as a consequence I dismissed the objection.

[28] I reiterate that I have expressed to the Respondent that it was my intention to determine this matter in the event he did not appear at the hearing.

[29] To this I also add that the Respondent's own materials (the Form F4 and Form F3) provide contradictory claims regarding the number of employees employed. The Form F3 indicates the Respondent is not a small business employer for the purposes of s.23 of the Act (stating that the Respondent had 19 employees). The Form F4 however asserts the number of employees was fewer than fifteen.

[30] In all, I consider the Respondent to have failed to discharge the onus to make out its case in relation to the particular objection raised.

[31] I have determined to hear the matter in the Respondent's absence, as provided for under the s.600 Act:

600 Determining matters in the absence of a person

The FWC may determine a matter before it in the absence of a person who has been required to attend before it.

[32] I now turn to the Applicant's substantive application. In so doing I rely on the materials and the evidence before me. My reasons for so doing are given above.

[33] The Applicant gave evidence that he was injured in a motorcycle accident on Saturday, 20 July 2013. This was a non-work-related accident.

[34] The Applicant sought to contact Mr McDonnell on 30 July 2013 to discuss his circumstances given that his annual leave was near exhausted. This is so given that the Applicant had only commenced employment on 4 March 2013 (as a heavy vehicle mechanic based at the Respondent's Yatala depot).

[35] Nonetheless, it appears that some communication was established and on 5 August 2013 the Applicant attended at the workplace. At this time the Applicant had not been cleared for a return to work by his medical practitioner. There was a discussion, on the Applicant's evidence, as to his physical capabilities and the number of hours that he could work. The Applicant was subsequently offered a position working modified duties for a 40 hour week at $25 an hour, which would net him approximately $675 per week. His salary had previously been $1300 per week net.

[36] The Applicant was informed on Wednesday 7 August 2013 that the business could not afford to pay his wages and that he would need to take time off until he had a full clearance to return to his normal duties.

[37] On 11 August 2013 the Applicant obtained a medical certificate which allowed him to return to work on, "light duties with no restrictions, IE what ever I thought I was capable of doing." (sic)

[38] The Applicant advised the employer of the situation but did not receive a response.

[39] On 19 August 2013 the Applicant had a discussion with Ms Joanne Kennedy, during which Ms Kennedy conveyed her wish for the Applicant to convert to a subcontractor arrangement owing to the Company's commercial circumstances.

[40] On 3 September 2013 the Applicant made available to the Respondent an updated medical certificate dated 29 August 2013. That medical certificate now provided a clearance for the Applicant to return to his usual duties from 9 September 2013.

[41] On 17 September 2013 Mr McDonnell sent the following text message to the Applicant:

Thank you for your e-mail. As you are aware that you injured yourself in an accident outside of working hours. Groovy freighters have paid you or your entitlements while you were off duty your injuries. When you approached me regarding light duties are offered to a job paying $675 take-home and you refused saying that that was not enough money to you. We then explained that you had a car with free fuel and free accommodation in our rental premises [...] and this was what we thought under the circumstances to be very good offer.

As you are also aware Groovy Freighters Pty Ltd has begun to wind down's operations and fleet size by leasing vehicles. This was something that you were aware of before you have an accident. At the time you approached us regarding light duties we had no idea how long you would be unavailable for mechanic duties and we were unable to make the decision regarding your employment at that time. We have since outsourced our mechanical work so we are covered by warranty and no longer have a position available for a mechanic.

To whether we do value the work that you have carried out for us to date and we will be more than happy to provide you with an excellent reference should you require this.

We are also happy to allow you to stay in the residence at Jacobs well Road Stapleton to assist you at this time. Groovy freighters will require you to vacate the premises by 1st November 2013 [...]. (sic)

[42] I have taken 17 September 2013 as being the date on which the Applicant was dismissed from his employment by the Respondent. Following this correspondence the Applicant says he had no further contact with Mr McDonnell of any kind.

[43] The relevant legislative provisions arise under s.387 of the Act which reads as follows:

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC 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] I turn to the substantive requirements of s.387 of the Act.

(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)

[45] The reason for the dismissal was not the subject of evidence as such. The Respondent's written materials (as they were) state that the Applicant's position was no longer required as the role of mechanic in the business was outsourced as part of a larger outsourcing strategy (which meant that it had leased out a number of its vehicles).

[46] The Applicant contested this proposition on the basis that, despite the outsourcing of a number of trucks, the business still retained a large number of trailers, prime movers and forklifts which required maintenance. The Applicant conceded that there had been outsourcing of some maintenance work but that the outflow of maintenance work was limited. He argued, as a consequence, that his dismissal was unrelated to any organisational changes as he could have continued to perform maintenance work regardless.

[47] The Applicant otherwise argued that his dismissal arose from an adverse view taken about the Applicant following his (non work related) injury.

[48] The Respondent, of course, elected not to contest these proceedings and could not therefore establish the grounds for the dismissal.

[49] The Applicant speculated that it may have been because Mr McDonnell confided in him in relation to business matters which caused tension with his partner, Ms Joanne Kennedy, who performed accounting duties for the business. The Applicant provided no evidence to this effect other than to make the bald assertion that this may have been the reason for the dismissal.

[50] There is nothing in the materials before me that persuade me that the Respondent had a valid reason for the dismissal, let alone a reason that was defensible and soundly based (see s.387(h) of the Act below).

(b) whether the person was notified of that reason

[51] The Applicant was notified of the asserted reason for his dismissal at the time his employment was terminated. He was not notified of the asserted reason for his dismissal in advance of the dismissal taking effect. As I will also observe below, had the Applicant been dismissed for operational related reasons s.387(b) of the Act would not have application because "that reason" relates to a valid reason arising from the Applicant conduct or capacity.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[52] The Applicant was given no opportunity to respond to the asserted reason for the dismissal. If the asserted reason, of course, had been made out and the Applicant had been made redundant, the circumstances of the case would not have been relevant to s.387(c) of the Act.

(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

[53] This consideration does not arise in the circumstances. There was no opportunity for the Applicant to seek the assistance of a support person in any event.

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[54] The dismissal of the Applicant did not concern an allegation of unsatisfactory performance, as far as that was ascertainable.

(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

[55] The Applicant's evidence was to the effect that the business was a small business seemingly conducted by Mr McDonnell and his partner Ms Kennedy. The Applicant's description of the managerial style was such to suggest that the Respondent had limited resources and devoted its time to the exigencies of the day-to-day operations, not its people management craft.

[56] In my view there is a strong probability that the size of the employer's enterprise impacted on the procedures followed in effecting the dismissal.

(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

[57] The Applicant's evidence was that there was no dedicated human resource management specialist or expertise available to the business. The Respondent described the lack of attention to induction and to the procedures and protocols manual. As above, in all probability the absence of wider human resource resources impacted on the procedures followed in effecting the dismissal.

(h) any other matters that the FWC considers relevant

[58] The Applicant was far from a long term employee. He had only been employed for a period of some 20 weeks before such time as he was dismissed.

[59] In my view, given the circumstances above, the Applicant was dismissed harshly unjustly and unreasonably. I come to this view notwithstanding that the employer had few resources with which it could manage the situation in which it found itself, and the Applicant was employed for a short period only. No other well founded and defensible reasons for the dismissal reduced from the evidence available to me (given the Respondent elected not to attend the hearing to defend its position).

[60] Section 390 of the Act reads as follows:

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.

Note: Division 5 deals with procedural matters such as applications for remedies.

[61] The Applicant is a person protected from unfair dismissal for the Act's purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise a discretion as to whether the Applicant can be reinstated.

[62] Section 391 of the Act provides as follows:

(1) An order for a person's reinstatement must be an order that the person's employer at the time of the dismissal reinstate the person by:

(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or

(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person's employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

(2) If the FWC makes an order under subsection (1) and considers it appropriate to do so, the FWC may also make any order that the FWC considers appropriate to maintain the following:

(b) the period of the person's continuous service with the employer, or (if subsection (1A) applies) the associated entity.

[63] I would neither reinstate (by re-appointing) the Applicant to his former position nor order that he be appointed to another equivalent position with the Respondent, or any associated entity of the Respondent, on the same or any other site.

[64] This is because the Applicant himself does not request reinstatement or otherwise. The fact that an applicant does not seek to be reinstated (or otherwise) is a significant reason for not exercising the discretion to reinstate etc. Where an employee is unwilling to return to the workplace a productive and cooperative relationship is unlikely to result.

[65] More so, the Applicant gave evidence that he no longer wished to be an employee of an employer and was not seeking to re-enter the workforce in such a relationship in the future. It would be fruitless, and indeed damaging to the business in such circumstances to reinstate or reappoint the Applicant. If the Commission was to cause an employee who no longer wishes to be re-employed or to be in an employment relationship to be re-employed into a previous position, then the outcome could only be unproductive and unstable.

[66] Because of my findings in this regard are now turn to consider 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.

(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.

[67] In respect of the above matters that I must take into account I find as follows:

(a) the effect of the order on the viability of the employer's enterprise

[68] There is no evidence that any order I might make for compensation would in some manner affect the employer's viability. I reach this conclusion tentatively however because the Applicant himself indicated that he was aware that the Respondent was experiencing financial difficulties.

(b) the length of the person's service with the employer

[69] The Applicant was employed for a short period of some 20 weeks. This is not a period of time that strongly encourages the making of an order for compensation.

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed

[70] On the evidence available to me, the Applicant would have been likely to have remained in employment for a period of at least a further three months.

[71] There is a necessary element of speculation in such a judgement as must be made by the Commission, as was admitted in the Full Bench in Sprigg v Paul's Licensed Festival Supermarket (1998) 88 IR. The judgement must be informed by any relevant circumstances known at the time, however.

[72] But in the current circumstances a number of particular aspects of the Applicant's evidence causes me to reach this conclusion. The Applicant maintained the following observations about the Respondents business by way of his evidence:

• The business was seeking to introduce outsourcing and leasing arrangements in order to reduce its costs and overheads;

• Its method of operation and ways of conducting its business affairs, in the words of the Applicant, were "prehistoric", "archaic", "minute by minute"; and

[73] The Applicant also claimed that he had been the object of rivalries in the organisation arising from Mr McDonnell's preference for seeking him out to obtain advice about how to run the business effectively, in preference to the advice of his partner Ms Kennedy.

[74] Whatever the bearing of this late matter of evidence, it appears to me in a business with the characteristics as described by the Respondent that his period of service would not have extended into the future by any great length of time. The Applicant also held a less than generous, indeed a negative view of his employer's business attributes.

[75] In my view, in such circumstances where turmoil and financial stress are present and an employee holds a negative view of his employer, it is reasonable only to project the period of continuing employment for a further period of two months.

[76] Thus, the Applicant would only have reasonably expected that the remuneration he would have earned but for the dismissal would have been remuneration he would have earned for a period of two months.

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal

[77] The Applicant gave evidence that since the dismissal on 17 September 2013 he had lost his motivation to earn a livelihood by way of being an employee of an employer. He claims to have been affected by the manner of the dismissal and was disheartened or in some other way psychologically unprepared to enter into a further employment relationship.

[78] The Applicant claimed that he had earned some $2000 by way of work under his "ABN" over the period 17 September 2013 to 15 May 2014. This work appears to have been carried out in a few instances from December 2013 and into the first quarter of 2014. The Applicant had applied for no jobs (with an employer) in the period September 2013 to May 2014.

[79] The Applicant claimed that he was seeking to rebuild his capital base so that he could conduct himself as a contractor at some point in the future.

[80] In essence therefore, the Applicant has made no efforts of any significance to mitigate his losses.

[81] I will reduce the amount the Applicant would be compensated by 75% because of his failure to mitigate his losses or to make efforts whatsoever in that direction during the anticipated period of employment. Indeed, in the circumstances of this case, the Applicant had no intention of mitigating his losses in the anticipated period of employment, and has been under-motivated thereafter as well.

(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.

[82] The Applicant indicated that he had earned $2000 since his dismissal on 17 September 2013 and the date of the hearing, 15 May 2014.

[83] The Applicant earned this income under his ABN.

[84] The invoices for the relevant services provided only arose from December 2013 and thereafter.

[85] These earnings do not appear to have arisen in the anticipated period of further employment (of two months) and I therefore do not take them into account for the purposes of determining the compensation to be paid to the Applicant.

(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

[86] This is not a matter that requires any further consideration.

(g) any other matter that the FWC considers relevant

[87] The Applicant gave evidence that he had numerous ongoing health issues that required physiotherapy and surgery. The Applicant had exhausted his annual leave by the time of his dismissal. It appears to me that there is a strong possibility that the Applicant may have had to access unpaid leave in the future to manage his various ailments. But that said, I am uncertain whether those matters would have arisen in the anticipated period of future employment.

[88] As a consequence I will not take them into account for the purposes of deductions in relation to contingencies (though I concede that the contrary position is arguable).

[89] Section 392(3) of the Act provides as follows:

(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.

[90] There is no evidence before me that the Applicant misconducted himself.

[91] Section 392(4) of the Act provides as follows:

(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.

[92] My order for compensation makes no allowance for the above proscribed matters or considerations.

[93] Section 392(5) of the Act provides as follows:

(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.

[94] Section 392(6) of the Act provides as follows:

(6) The amount is the total of the following amounts:

(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.

[95] The order that I propose to make does not need to take into account the statutory cap.

[96] Section 393 of the Act provides as follows:

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.

[97] The Respondent has made no application (given that it has failed to appear) to pay any amount I may order to be paid as compensation in instalments.

[98] In my view the Applicant was dismissed harshly, unjustly or unreasonably, as I have indicated earlier. The compensation the Respondent must pay to the Applicant is an amount equivalent to two weeks of his usual remuneration.

[99] An order to this effect will issue along with the publication of this decision.

[100] I add that I have reviewed the amount ordered to be paid in all the circumstances of this matter, including the Applicant's short period of employment, and consider it to be an amount that is also appropriate in the context of this application.

Printed by authority of the Commonwealth Government Printer

var _gaq = _gaq || []; _gaq.push(['_setAccount', 'UA-9592794-1']); _gaq.push(['_trackPageview']); (function() { var ga = document.createElement('script'); ga.type = 'text/javascript'; ga.async = true; ga.src = ('https:' == document.location.protocol ? 'https://ssl' : 'http://www') + '.google-analytics.com/ga.js'; var s = document.getElementsByTagName('script')[0]; s.parentNode.insertBefore(ga, s); })();