Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2021] FWC 1788 of Deputy President Binet at Perth on 31 March 2021 and order PR728302 of Deputy President Binet at Perth on 28 April 2021 in matter number U2020/11820 - permission to appeal granted - appeal upheld - new information received-first decision revoked and further decision issued in order to correct errors in calculation of compensation taking into account new information.

[1] On 3 August 2021, this Full Bench issued a decision[1] (the 3 August decision) upholding an appeal against a decision[2] of Deputy President Binet (the Deputy President). On 17 August 2021, a Statement was subsequently issued by the Full Bench (the Statement).[3] For the reasons outlined below, pursuant to s.603(2)(a) the Fair Work Act 2009 (Cth) (the FW Act), we revoke our 3 August decision and replace it with this decision (the revocation decision). It follows that the decision of 3 August is of no effect. An order giving effect to the revocation decision will be issued separately.

[2] In the 3 August decision, the Full Bench determined as follows:

"• Permission to appeal is granted in relation to the two grounds of appeal.

• The appeal is upheld in respect of both grounds of appeal.

• The Deputy President's determination is quashed insofar as it concerns the payment of any compensation to Mr Govender.

• The order[4] that ERGT pay Mr Govender the sum of $24,633.75 is quashed.

• ERGT are not required to pay any compensation to Mr Govender."[5]

[3] Shortly after the publication of the 3 August decision, Mr Kevin Govender (Mr Govender/the Respondent) wrote to the Chambers of Vice President Catanzariti, asserting that the Full Bench had made an error in calculating the compensation due to him. The Respondent attached to the correspondence a schedule which provided a breakdown of the amount of money he had received upon termination of his employment. This schedule had not been previously put before the Deputy President and therefore was not before the Full Bench. It was clear from the schedule that the calculation of compensation made by the Deputy President was incorrect. Namely, the amount the Deputy President determined had been paid to the Respondent by way of notice and redundancy pay were both incorrect to the extent that payments for long service leave and annual leave were included in the calculations.

[4] A series of communications between the Vice President's Chambers, ERGT Australia Pty Ltd (ERGT/the Appellant) and the Respondent ensued. The parties' calculations as to the amount of compensation due to the Respondent differed. On 17 August 2021, we issued the Statement outlining the background of the matter and expressing our provisional view as to the amount of compensation that should be made payable to the Respondent by the Appellant.

[5] The Statement indicated that the parties would have until 5:00pm on Friday, 20 August 2021 to indicate whether they object to the provisional views expressed in the Statement. Furthermore, the Statement indicated that in the event that there were no objections, the 3 August decision would be varied to reflect the provisional views expressed in the Statement and we would make an order for the payment of compensation by the Appellant to the Respondent as outlined in the Statement.

[6] The parties have not made any objections to the proposed course outlined in the Statement. As stated above, the decision of 3 August is revoked and the below represents the decision of the Full Bench in this appeal:

[7] ERGT has lodged an appeal, for which permission to appeal is required, against a decision of Deputy President Binet on 31 March 2021[6] and order for compensation made on 28 April 2021.[7] The grounds of appeal are directed entirely at the amount of compensation ordered by the Deputy President. There is no challenge to the decision of the Deputy President that the dismissal was unfair.

[8] The Appellant requested that the appeal be determined on the papers without the need for a formal hearing. The Respondent consented to this request. Accordingly, pursuant to s.607(1) of the FW Act, the appeal was conducted on the basis of written submissions only.

[9] The order issued by the Deputy President on 28 April 2021 to give effect to the decision included further reasons for the making of the order. The order was for ERGT to pay Mr Govender the sum of $24,633.75 (taxed according to law) plus applicable superannuation within 14 days of the date of the order.

[10] ERGT's notice of appeal, which was lodged on 18 May 2021, sought a stay of the order to pay $24,633.75 as compensation to MrGovender. Vice President Catanzariti determined to issue an order staying the order to pay compensation.[8] The order was made by consent. The order issued by the Vice President included the following:

"ERGT Australia Pty Ltd (the Appellant) is to make payment within seven days of the amount of $24,633.75, less appropriate taxation, into a trust account.

Subject to any further order, the sum held in trust in accordance with paragraph 2 of this order:

(a) be paid to Kevin Govender, subject to the deduction of taxation as required by law, in the event that the Appellant is unsuccessful in its appeal; or

(b) be returned to the Appellant, in the event that the Appellant is successful in its appeal."[9]

[11] The order issued by Vice President Catanzariti operates until the determination of the appeal against the decision or until a further order of the Commission.

[12] In the proceeding before the Deputy President, ERGT submitted that Mr Govender's dismissal was a case of genuine redundancy and therefore he could not have been unfairly dismissed. Mr Govender disputed that his dismissal was a case of genuine redundancy.

[13] The Deputy President determined that she was satisfied that Mr Govender's role as an Accountant was no longer required to be performed by anyone because of changes in the operational requirements of ERGT's enterprise. However, the Deputy President found that it would have been reasonable in all the circumstances to redeploy Mr Govender within the employer's enterprise to the role of Book Keeper, notwithstanding the duties of the role and the lower remuneration attached to the Book Keeper position.

[14] The Deputy President determined on this point that:

"In light of ERGTs failure to offer Mr Govender the role of Book Keeper, I find that Mr Govender's dismissal was not a case of genuine redundancy within the meaning of section 389 of the FW Act."[10]

[15] Having rejected ERGT's jurisdictional objection that the dismissal was a case of genuine redundancy, the Deputy President turned to consider the merits of the application. Having done so, the Deputy President determined:

"Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that, overall, the dismissal of Mr Govender was unreasonable because he could have been redeployed, and harsh because of the impact of losing his employment in the midst of a pandemic. Accordingly, I find that Mr Govender's dismissal was unfair within the meaning of the FW Act."[11]

[16] Turning to remedy, the Deputy President determined that reinstatement was not appropriate, but that an order for compensation was appropriate.

[17] The Deputy President then set out the requirements in assessing compensation, that being to take into account all of the circumstances of the case, including the specific matters identified in paragraphs (a) to (g) of s.392(2) of the FW Act. The Deputy President also sets out that she will apply the established methodology for assessing compensation set out in Sprigg v Paul's Licensed Festival Supermarket (Sprigg).[12]

[18] Having regard to s.392(2)(c), the Deputy President determined that the remuneration Mr Govender would have received or would have been likely to receive was $73,150.88 per annum less a temporary salary cut Mr Govender had agreed in order to assist ERGT deal with the impact of COVID. Further, the Deputy President determined that Mr Govender's employment with ERGT would have continued for a further 6 months.[13]

[19] In consideration of ss.392(2)(e) and (f), the remuneration Mr Govender earned or is reasonably likely to earn since his dismissal, the Deputy President made the following findings:

"Upon termination ERGT paid Mr Govender the equivalent of eighteen weeks' pay in the form of 14 weeks severance pay, in accordance with clause 41.3 of the Agreement, and four weeks pay in lieu of notice, pursuant to clause 40.1 of the Agreement. This payment was made at the rate Mr Govender was receiving in his position as an Accountant. In monetary terms, these payments amount to $40,427.03 in total.

I should deduct from the amount of compensation the four weeks' notice payment paid to Mr Govender in the amount of $8983.78.

I will not deduct the fourteen weeks' severance payment paid to Mr Govender. Severance payments are not remuneration. Severance payments serve a different purpose. The purpose of severance pay is to compensate an employee for matters such as the trauma associated with the termination of employment, the loss of non-transferable credits such as sick leave, the loss of security and seniority, lower job satisfaction and diminished social status and conditions."[14]

[20] The Deputy President then, in considering the factors under ss.392(2)(a) and (b), determined that neither factor satisfied her that any adjustment to the amount of compensation was required.

[21] In considering the factors relevant to s.392(2)(d), the Deputy President determined as follows:

"Noting that Mr Govender was paid four weeks' notice and fourteen weeks' redundancy totalling an eighteen week period from the date of his dismissal, Mr Govender did not suffer any economic loss.

The evidence of Mr Govender is that he has made efforts to obtain alternative employment following his dismissal on 14 August 2020. Not unsurprisingly in the current environment, Mr Govender has not yet been able to obtain alternative employment."[15]

[22] Turning to s.392(2)(g), which deals with any other relevant matters, the Deputy President determined as follows:

"Any discount for contingencies should only be applied in respect to an anticipated period of employment that is not actually known, that is a period that is prospective to the date of the decision. Namely the period between the date of this decision until 14 August 2021.

In all of the circumstances, my view is that it is appropriate to apply a discount to the amount of compensation for contingencies of 10%."[16]

[23] The Deputy President then considered the amount should be reduced because of misconduct and determined that this factor was not relevant.[17] Her Honour noted the prohibition under s.392(4) on compensating for shock, distress or humiliation and noted the amount calculated did not include a component for these factors.[18] In considering the impact of taxation, the Deputy President determined to express the compensation sum in a gross amount with a direction that ERGT withhold taxation in accordance with the law.[19] In consideration of s.392(5), the compensation cap, the Deputy President determined the amount she proposed to order was less than the compensation cap.[20]

[24] In the final paragraphs of the decision, the Deputy President set out the following:

"[200] In my view, the application of the Sprigg formula does not, in this case, yield an amount that is clearly excessive or clearly inadequate. Accordingly, my view is that there is no basis for me to reassess the assumptions made in reaching my conclusion as to the appropriate amount of compensation to be awarded to Mr Govender.

[201] Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that, overall, the dismissal of Mr Govender was unreasonable because he could have been redeployed, and harsh because of the impact of losing his employment in the midst of a pandemic. Accordingly, I find that Mr Govender's dismissal was unfair within the meaning of

[202] For the reasons I have given, my view is that a remedy of compensation in favour of Mr Govender is appropriate in the circumstances of this case.

[203] The parties are directed to provide to Chambers within seven days of the date of this decision details of the period in relation to which Mr Govender agreed to the temporary reduction in his salary so that the compensation sum can be calculated.

[204] Upon provision of this information an Order will be issued."[21]

[25] Subsequently, on 28 April 2021, the Deputy President issued an order, which includes further reasons for the Deputy President's calculation of the appropriate amount of compensation to be ordered. The order is in the following terms:

"[1] Further to the decision in [2021] FWC 1788 the Fair Work Commission orders ERGT Australia Pty Ltd (ERGT) pay Mr Kevin Govender (Mr Govender) the sum of $24,633.75 (to be taxed according to law) plus applicable superannuation within 14 days of the date of this Order."

[26] The further reasons were as follows:

"[2] This amount has been calculated as set out below.

[3] It was determined that the position it would have been reasonable, in all of the circumstances, for ERGT to have redeployed Mr Govender into was the role of Book Keeper. The evidence was that the Book Keeper position would be paid an annual salary of $10,000 less than the role of Accountant which, according to the ERGT Australia Pty Ltd (ERGT) Form F3 - Employer Response to Unfair Dismissal Application, attracted a salary of $83,150.88 per annum.

[4] The evidence is that employees including Mr Govender agreed to a temporary salary reduction to assist ERGT deal with the impact of COVID.

[5] The remuneration Mr Govender would have been likely to have received if he had not been dismissed is $73,150.88 per annum less the temporary salary cut agreed to assist ERGT deal with the impact of COVID. $73,150.88 per annum equates to a daily rate of $200.41.

[6] Mr Govender would have remained in employment for a further 6 months until 15 February 2021. I accept the evidence of Mr Govender that the temporary salary reduction which applied to employees in the salary band $70,000 to $80,000 was 5%. I accept the evidence of ERGT that the temporary salary cut ceased on 25 October 2020. During this period he would have earned:

$200.41 per day from 15 August 2020 until 25 October 2020 (72 days) = $14,429.76 less 5% ($721.48) = $13,708.28

$200.41 per day from 26 October 2020 until 15 February 2021 (113 days) = $22,646.33

[7] From this is subtracted the sum of $8983.78 which Mr Govender was paid in lieu of notice reducing the amount payable to Mr Govender to $27,370.83.

[8] Applying contingencies of 10% ($2,737.08) the amount payable to Mr Govender is reduced from $27,370.83 to $24,633.75.

[9] From this amount taxation is to be deducted and superannuation is to be added."[22]

[27] As noted earlier, ERGT does not challenge the decision of the Deputy President that the dismissal was unfair. The two grounds of appeal are directed at the alleged error in the calculation of the proper amount of compensation. In particular, that the Deputy President erred in calculating the proper amount of compensation by:

• (a) misapplying the principles in Sprigg v Paul Licensed Festival Supermarket; and

(b) misapplying section 392(2).[23]

[28] A summary of ERGT's submissions in support of the appeal ground that the Deputy President misapplied the principles in Sprigg are as follows:

• Step 1 is to estimate the remuneration the employee would have received if they had not been dismissed. The purpose of step 1 is to ascertain what the successful applicant has lost as a consequence of the unfair dismissal. That estimate should take into account that the successful applicant would not have received a redundancy payment if they had been redeployed rather than dismissed.

• The refinement of that step could be re-stated as: estimate the shortfall between the remuneration that the employee received at termination, and the remuneration the employee would have received if their employment had continued for the period of time that accords with the Commission's conclusion about how long the employment would have continued.

• By failing to deduct the redundancy pay received from the compensation amount, ERGT contents that the Deputy President has applied an overly technical approach to defining remuneration and, in doing so, distorted the compensation order's intended effect.

[29] A summary of ERGT's submissions in support of the appeal ground that The Deputy President misapplied s.392(2) are as follows:

• applying Sprigg (even correctly) is not a substitute for properly construing section 392(2) and that subsection (2) requires the Commission to, firstly, "take into account all the circumstances of the case" and in doing so taken into account the matters from (a) to (f).

• Subsection 2(g) requires the Commission to look at all other relevant considerations that are not listed in subsections (a) to (f), including whether the compensation order achieves the purpose for which the order is made.

• That the purpose of the order is to replace the successful applicant's prospective earnings as though the dismissal had not taken place, and to require the unsuccessful respondent to bear the cost of that replacement.

• The order is not intended to allow the successful applicant to make any kind of windfall gain (i.e. to be in a better position that they would have been had they not been dismissed), nor it intended to impose costs on the unsuccessful respondent beyond what is necessary to replace the applicant's lost remuneration.

• Deputy President Binet's decision to the effect that redundancy payments should be ignored for the purpose of applying section 392(2) and the Sprigg principles that guide interpretation of that section, is incorrect.

• The effect of taking the redundancy payment into account, and depriving the Respondent of his windfall gain, is that no order for compensation should be made at all."[24]

[30] Mr Govender in reply submitted that redundancy payments should not be considered remuneration and that the Deputy President was therefore correct in her approach. Mr Govender's submissions included the following:

"In the 2004 Redundancy Case[2004] AIRC 287; , (2004) 129 IR 155. the Full Bench of the Australian Industrial Relations Commission confirmed the purpose of redundancy pay is to compensate an employee for matters such as the trauma associated with the termination of employment, the loss of non-transferable credits such as sick leave, the loss of security and seniority, lower job satisfaction and diminished social status and conditions.

Deputy President Binet therefore correctly estimated the remuneration by not considering the redundancy payment as remuneration. Deputy President Binet also correctly applied the principles in Sprigg v Paul Licensed Festival Supermarket to calculate the compensation for the unfair dismissal.

I experienced trauma associated with the termination of my employment with Wellparks Holdings Pty Ltd t/as ERGT Australia. I lost my employment during a pandemic. I lost my job keeper entitlement and was not eligible for jobseeker. It was exceedingly difficult to find employment in the midst of a pandemic. ERGT Australia did not show compassion by terminating me during a pandemic. ERGT Australia did not consider the ramifications and trauma this decision would cause me.

The objects of the unfair dismissal provisions are:

• to establish a framework for dealing with unfair dismissal that balances the needs of business (including small business) and the needs of employees.
• to establish procedures which are quick, flexible and informal, and address the needs of employers and employees.
• to provide remedies where a dismissal is found to be unfair with an emphasis on reinstatement.

Employers in situations like this case would be able to dismiss staff unfairly and not be liable for compensation if the redundancy pay is not ignored for the purpose of applying section 392 (2). This is not the purpose and intention of unfair dismissal provisions.

Redundancy payments are not considered remuneration and should be ignored for the purpose of applying section 392 (2).

Deputy President Binet correctly estimated the remuneration by not considering the redundancy payment as remuneration and correctly applied the principles in Sprigg v Paul Licensed Festival Supermarket to calculate the compensation for the unfair dismissal."[25]

[31] The appeal is made under s.604 of the FW Act. There is no right to appeal and an appeal may only be made with permission of the Commission. If permission is granted, the appeal is by way of rehearing. The Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker.[26]

[32] Section 400 of the FW Act applies to this appeal. It provides:

"(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

[33] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the FW Act as "a stringent one". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[27] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of Decisions at first instance so that guidance from an appellate court is required, or where the Decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent Decisions dealing with similar matters".[28]

[34] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[29] However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.[30]

[35] We are satisfied that the grant of permission to appeal would be in the public interest because it is apparent that the Deputy President's calculation of compensation was attended by appealable error and raises issues of general application.

[36] The error of the Deputy President was the failure to deduct severance pay from the calculation of the appropriate amount of compensation ordered to be paid to Mr Govender.

[37] The amount was paid to Mr Govender because at the time of termination of employment, ERGT was proceeding on the basis that they no longer required the job to be done by anyone, triggering an obligation to pay redundancy pay.

[38] The reasoning of the Deputy President was that payments for redundancy, or severance payments, are not remuneration and serve a different purpose. In taking this course, the Deputy President cited an earlier decision of Commissioner Johns, being Alana Fayad

v NobleOak Aspire Pty Ltd.[31] In that decision, Commissioner Johns determined that

**"**I will not deduct the 10 weeks' redundancy payment paid to the Applicant. Redundancy payments are not remuneration. Redundancy payments serve a different purpose. The purpose of redundancy pay is to compensate an employee for matters such as the trauma associated with the termination of employment, the loss of non-transferable credits such as sick leave, the loss of security and seniority, lower job satisfaction and diminished social status and conditions.[32]"[33]

[39] It is apparent that the Deputy President adopted the same approach as that of Commissioner Johns. We were not taken to any other decisions, where redundancy payments have not been deducted as remuneration earned as part of the consideration of s.392(2)(e). However, ERGT referred us to three other decisions where single Members of the Commission have deducted severance pay as part of the calculation of the appropriate compensation.[34]

[40] As noted by the 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.[35] This approach was articulated in the context of the FW Act in Bowden v Ottrey Homes Cobram and District Retirement Villages[36]."[37]

[41] The Sprigg formula was decided under previous legislation. However, a number of Full Benches of the Commission have confirmed its continuing relevance to the calculation of compensation, taking into account the factors in s.392(2) of the Act.[38] More recently, it was said that the decision in Sprigg sets out a well-established, structured and transparent methodology for the assessment of compensation.[39]

[42] It is important that the methodology in Sprigg is applied in a consistent manner by the Commission and this includes consistency in the treatment of moneys paid to an Applicant by way of severance or redundancy pay when considering s.392(2)(e). Indeed, the Full Bench in Sprigg stated that "it is desirable that a consistent and predictable technique for determining an amount to be ordered in lieu of reinstatement should emerge in Commission practice."[40] We consider that principle to be no less important today as it was when Sprigg was decided.

[43] The decision in Sprigg, essentially adopted the approach set out by Vice President Ross as he then was in Shorten v Australian Meat Holdings Pty Ltd (Shorten):[41]

"Steps 1 to 4 set out as part of principle 5 in Shorten in our view continue to be appropriate and relatively necessary steps in the estimation and appropriate assessment of remuneration lost."[42]

[44] Step 2, as it was set out in Shorten, reads as follows:

"Deduct moneys earned since termination. Workers compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation awarded."[43]

[45] In settling on the approach to step 2, his Honour Vice President Ross referred to the decision of Wilcox CJ in Mullany v Active Concrete[44]:

"The Court is required under s 170EE(3), in working out the amount of compensation, 'to have regard to the remuneration that the employee would have received or would have been likely to have received if the employer had not terminated the employment'; but the amount must not exceed the amount of remuneration that would have been received by the employee in respect of the period of six months that immediately followed the date of termination. I think that the subsection directs attention to remuneration received in respect of work done, not money received from other sources and unrelated to work done; for example, social security receipts or gifts received from organisations or persons who take a charitable interest in the employee's plight. Accordingly, I do not propose to reduce the amount of compensation to which I think the applicant is otherwise entitled because of the social services payments."[45]

[46] It is apparent from the foregoing that the methodology in Sprigg, contemplates as a second step in the process, the deductions of "moneys earned since termination". The only moneys excluded from this is moneys received from other sources and unrelated to work done.

[47] The payment of redundancy pay made to Mr Govender in this matter is not money received from another source and nor is it unrelated to work done. It should therefore, consistent with a proper application of step 2 in Sprigg, be deducted from the amount of remuneration established in step 1.

[48] We agree that the purpose of redundancy pay is to, among other things, compensate an employee for the loss of the types of things cited in the Redundancy Case[46] such as sick leave However, that does not mean that the payment made is not "remuneration" within the meaning of s.392(2)(e).

[49] This is consistent with a proper reading of the text of s.392(2). As was said by the Full Bench in Deborah Kable v Bozelle, Michael Keith T/A Matilda Greenbank:

"A compensation remedy is designed to compensate an unfairly dismissed employee in lieu of reinstatement for losses reasonably attributable to the unfair dismissal within the bounds of the statutory cap on compensation that is to be applied. That this is so is evident from the nature of the considerations to which the Commission must have regard set out in s.392 of the Act."[47]

[50] More recently, the Full Bench in Chesson Pty Limited t/a Pay Per Click v Nicole Knutson[48] confirmed that the function of compensation ordered pursuant to s.392 is to compensate for loss arising from the dismissal.

[51] When considering s.392(2)(d), which requires the Commission to consider what efforts the Applicant had made to mitigate his loss, the Deputy President made the following finding:

"Noting that Mr Govender was paid four weeks' notice and fourteen weeks' redundancy totalling an eighteen week period from the date of his dismissal, Mr Govender did not suffer any economic loss."[49]

[52] On this point the Deputy President was in error. That error became apparent subsequent to the Full Bench issuing its decision on 3 August 2021. As set out above, further evidence was provided by way of a schedule of payments which the parties agreed correctly reflected the amounts of the various payments made to Mr Govender on termination. It is also apparent that it is not in contest that the correct amounts of notice and redundancy are reflected in the schedule provided by Mr Govender on 8 August 2021. The parties agree that this schedule was never provided to the Deputy President, nor was the schedule provided to the Full Bench. Mr Govender did not make any reference to the amounts the Deputy President determined as the amounts paid for notice and severance pay in his submissions to the Full Bench. ERGT, who we note was represented, maintained in their written submissions to the Full Bench that the amount of $31,488.25 should be deducted,[50] despite this clearly being inconsistent with the schedule that ERGT provided to Mr Govender.

[53] The amount of remuneration Mr Govender was likely to earn had he remained in employment for a further period of 6 months was $36,354.61. Mr Govender had been paid the amount of $6,396.23 as payment in lieu of notice, plus the amount of severance pay of $22,386.61. These payments amount to $28,783.04. This leaves an amount of $7,571.57 representing the amount of economic loss suffered by Mr Govender.

[54] In the circumstances, the Deputy President was in error to make an award for compensation in the amount of $24,633.75. In calculating the amount, the Deputy President did not deduct the amount paid to Mr Govender as severance pay. In doing so, the Deputy President misapplied s.392(2) of the FW Act and the principles in Sprigg. The amount determined by the Deputy President was affected by the further error of erroneously adding the amounts paid to Mr Govender for annual leave and long service leave as amounts paid for severance pay.

[55] We have determined that the amount of compensation to be ordered is $7,571.57 less tax according to law plus superannuation, which reflects the amount of economic loss suffered by Mr Govender as a result of the dismissal. In determining the amount, we have not made a deduction for contingencies as the anticipated period of employment was known at the time the Deputy President made the decision on 31 March 2021, Mr Govender having been dismissed on 14 August 2020 and his anticipated period of employment being 6 months. Contingencies apply to the anticipated period of employment.[51] We note that the Deputy President made a deduction for contingencies. However, the Deputy President was in error in doing so.

[56] Having regard to all of the factors in s.392 of the FW Act, we have determined that the amount of compensation to be ordered to Mr Govender is $7,571.57 less tax according to law plus superannuation.

[57] We order as follows:

• Permission to appeal is granted in relation to the two grounds of appeal.

• The appeal is upheld in respect of both grounds of appeal.

• The order[52] that ERGT pay Mr Govender the sum of $24,633.75 is quashed.

• An order will be issued that ERGT pay compensation to Mr Govender in the amount of $7,571.57 gross, less taxation as required by law plus superannuation of 9.5% within 14 days from the date the order is made.

[50] The stay order[53] issued by Vice President Catanzariti on 21 May 2021 is set aside."

[58] Accordingly, an order will be issued concurrently with this decision, revoking the 3 August decision and that ERGT pay compensation to Mr Govender in the amount of $7,571.57 gross, less taxation as required by law plus superannuation of 9.5% within 14 days from the date the order is made.

[1] ERGT Australia Pty Ltd v Govender [2021] FWCFB 4508.

[2] Govender V ERGT Australia Pty Ltd [2021] FWC 1788.

[3] ERGT Australia Pty Ltd v Govender [2021] FWCFB 4992.

[4] PR728302.

[5] ERGT Australia Pty Ltd v Kevin Govender [2021] FWCFB 4508 at [48].

[6] [2021] FWC 1788.

[7] PR728302.

[8] PR730087.

[10] [2021] FWC 1788 at [133].

[12] (1998) 88 IR 21.

[13] [2021] FWC 1788 at [179] - [179].

[23] Appellant's Outline of Submissions at [24].

[25] Respondent's Outline of Submissions at [4] - [11].

[26] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 99 IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[27] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78, 207 IR 177 at [44] - [46].

[28] [2010] FWAFB 5343, 197 IR 266 at [27].

[29] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30].

[30] GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343, 197 IR 266 at [26]- [27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089, 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78, 207 IR 177; New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, (2014) 241 IR 177 at [28].

[31] [2020] FWC 6475.

[32] The Redundancy Case [2004] AIRC 287; (2004) 129 IR 155.

[33] [2020] FWC 6475 at [60].

[34] Lindsay v Department of Finance [2011] FWA 4078; Ho v AP Eagers Ltd [2010] FWA 5897; Dixon v Natures Organics, McCarthy v Natures Organics [2013] FWA 9720.

[35] (1998) 88 IR 21.

[36] [2013] FWCFB 431.

[37] Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206, [16].

[38] Bowden v Ottrey Homes Cobram and District Retirement Villages [2013] FWCFB 431; See also in Smith v Fearon Howard Real Estate Pty Ltd T/A Ray White (Balmain) [2021] FWCFB 581.

[39] Chesson Pty Limited t/a Pay Per Click v Nicole Knutson [2018] FWCFB 4149.

[40] (1998) 88 IR 21 at [31].

[41] (1996) 70 IR 360.

[42] (1998) 88 IR 21 at [35].

[43] (1996) 70 IR 360 at p.381.

[44] (1995) 62 IR 237.

[45] (1996) 70 IR 360 at p.376.

[46] [2004] AIRC 287; (2004) 129 IR 155.

[47] [2015] FWCFB 3512 at [17].

[48] [2018] FWCFB 4149.

[49] [2021] FWC 1788 AT [185].

[50] Appellant's Submissions, paragraphs 37-38.

[51] Enhance Systems Pty Ltd v Cox PR910779 (AIRCFB, Williams SDP, Acton SDP, Gay C, 31 October 2001) at [39]; citing

Ellawala v Australian Postal Corporation Print S5109 (AIRCFB, Ross VP, Williams SDP, Gay C, 17 April 2000) at [43].

[52] PR728302

[53] PR730087.

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