Dafallah v Fair Work Commission

THE PARTIES' SUBMISSIONS 5 The applicant made no further submissions on the sum I proposed to award for non-economic loss. However, the applicant sought an increased amount of compensation for economic loss, for the three months' salary I found she was entitled to receive as a consequence of the second respondent's breach. The applicant submitted that her annual salary for the financial year 2009-2010 was $57,844 and, therefore, compensation for three months' salary would total $14,461.00. 6 In support of this submission, the applicant sought to rely on a copy of a PAYG payment summary for the period ending 1 July 2009 to 30 June 2010, which was attached to her written submissions filed with the Court. That summary shows a gross payments amount of $40,844, and a reportable fringe benefit amount of $17,000, for that period. The "Payer's name" is recorded as "Melbourne Health". No payee details are recorded on the summary. 7 The second respondent made submissions on the proposed orders for both economic loss and non-economic loss. On economic loss, the second respondent submits that the applicant's evidence on her loss was "vague and unreliable". It submits that a more appropriate basis on which to calculate the applicant's loss is the fact, agreed between the parties in a statement filed pursuant to s 191 of the Evidence Act 1995 (Cth), that "[a]t the time of her termination, Mariam Dafallah was working full-time at Melbourne Health and was paid a base hourly rate of $20.37105". Calculated on the basis of a 38-hour week (pursuant to s 62 of the Fair Work Act 2009 (Cth)), Melbourne Health submits, the total economic loss incurred by the applicant is $10,063.30. In response to the applicant's submissions on her earnings for the 2009-2010 financial year, the second respondent submitted that, having failed to provide reliable evidence on her economic loss at trial, the applicant should not now be allowed to adduce further evidence of her rate of remuneration. 8 In my opinion, going beyond the leave granted in respect of further submissions, rather than addressing itself to the form of orders in respect of non-economic loss, the second respondent submitted that no amount should be awarded for non-economic loss. It contended that there was not the requisite causal connection between the second respondent's breach of the Agreement, which was its failure to provide separate first and second warnings, pursuant to cl 38, in August 2009, and the applicant's loss, which was in the form of humiliation and distress that the applicant claimed she experienced primarily towards the termination of her employment in September 2010. It submitted: The crucial point is that there is no basis for finding that any alleged "humiliation and distress" suffered by the Applicant was because of the issuing of the first and second written warnings in the same document. She may well have been distressed by the fact that performance concerns had been raised, and that her employment was ultimately terminated, but that is not to the point. The raising of performance issues and the ultimate termination of employment do not constitute the contravention which has been found by the Court. … As noted at [173], the distress claimed by the Applicant was "especially towards the end of her employment", which ended on 1 September 2010. The contravention found by the Court occurred over a year earlier, on 10 August 2009. There is no evidentiary basis for concluding that any non-economic loss was suffered as a result of the contravention found by the Court. 9 Both the applicant and second respondent submitted that, in light of the operation of s 570 of the Fair Work Act 2009 (Cth), the parties agreed that there should be no order as to costs.

CONSIDERATION 10 No documentary evidence was provided by the applicant either prior to or during the trial to substantiate her claims for economic loss. As I explain at [164] of my reasons for judgment, the applicant's legal representative contended in final submissions that the issue of damages should be determined either by agreement or at a separate hearing. I did not accept that submission, finding that the applicant had ample opportunity to address the gaps in her evidence about her economic loss. By providing a copy of the PAYG summary with her further written submissions, in my opinion the applicant is again seeking to address those gaps by way of additional evidence, filed without leave of the Court after the evidence has closed and indeed after judgment has been delivered. The evidence is not in admissible form and is simply attached to the written submissions. I do not propose to accept or consider that evidence. 11 Even if that evidence were to be considered, it does not advance the applicant's position on economic loss. First, there is a not insignificant forensic difficulty that the PAYG summary does not on its face relate to the applicant. Her name does not appear anywhere on the document, nor are there any other identifying personal details appearing on the summary. Further, $17,000 of the earnings recorded are said to be a "Reportable fringe benefits amount". There is no evidence or further information about to what that reportable amount relates. Without further evidence about the nature of that benefit, it is impossible for the Court to draw any conclusions as to whether that sum should be included in any calculation of economic loss by the applicant. 12 I accept the second respondent's submissions that the appropriate basis upon which to calculate the applicant's economic loss is that set out in the statement of agreed facts, to which I refer at [7] above. The applicant's hourly rate of pay and the number of hours she was working at the time of the termination of her employment were among the few facts upon which the parties could agree in this proceeding. I accept the second respondent's submission that it is appropriate to make this calculation on the basis of a 38-hour week (see s 62 of the FW Act) over a 13-week period. Orders will be made requiring the second respondent to pay the applicant $10,063.30, being compensation for her economic loss. 13 Even if leave were extended to enable the second respondent to challenge my finding that the applicant should receive $3000 by way of non-economic loss (which it has not been), I do not accept the contention there is no or insufficient causal connection between the contravention and that amount of compensation for non-economic loss. As I found at [179] of my reasons, Ms Dafallah gave evidence of being upset at how she was treated during the warning process. I accepted her evidence on this issue and, having observed her in the witness box, in my opinion the distress she was recalling was not trivial. Her evidence disclosed that she worked very long hours, having come to this country as a refugee and needing to support family in Uganda. Her employment at Melbourne Health mattered to her. 14 I have found that the second respondent's contraventions in relation to the warnings resulted in Ms Dafallah's employment being terminated several months earlier than would otherwise have been the case. Had the second respondent adhered to its obligations under cl 38 of the Agreement and provided the staged, sequential process which the Agreement contemplates, allowing for an employee to seek to remedy performance or conduct issues which are of concern to the employer (see [90] of my reasons), then in my opinion the manner in which Ms Dafallah's employment was terminated and which I describe at [75] of my reasons may have been quite different. 15 The contravention in giving unlawful combined warnings, placing her only one warning away from the termination of her employment, clearly distressed Ms Dafallah, and provoked considerable protest from her. That contravention also led prematurely to termination of her employment by the second respondent in a way which may have been less severe if the second respondent had adhered to its obligations under cl 38. 16 It is tolerably clear that the distress experienced by Ms Dafallah, both at the time of the warnings and in the way her employment was eventually terminated, was, as s 545(2)(b) of the FW Act requires, "because of" the second respondent's failure to comply with cl 38 of the Agreement. In my opinion, had she been treated in accordance with cl 38, she would have avoided the shock and distress of being moved immediately to one step away from having her employment terminated, and it would have been more likely than not that, after a properly staged and sequential warning process, her employment would not have been terminated in the manner I described in [75] of my reasons. 17 Accordingly, there will be orders requiring the second respondent to pay the applicant compensation for non-economic loss in the sum of $3000. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.