Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether dismissed - dismissal unfair - compensation ordered.

[1] Mr Nathan Jackson was employed by Mr Mahmoud Hasan Abulamoun as a casual trolley collector from September 2018 until his alleged dismissal on 20 May 2020. Mr Abulamoun contends that Mr Jackson was not dismissed within the meaning of s 386 of the Fair Work Act 2009 (Cth) (Act). Mr Jackson denies that assertion and contends that he was dismissed and his dismissal was harsh, unjust and unreasonable.

[2] Mr Jackson filed his unfair dismissal application in the Fair Work Commission (Commission) against Mr Abulamoun on about 25 May 2020 (Application).

[3] I decided that it was appropriate to hold a determinative conference rather than a hearing in this matter. In making that decision, I had regard to the views of the parties, together with the fact that a determinative conference would be the most effective and efficient way to resolve this matter. The determinative conference was conducted, in person, on 28 July 2020.

[4] Mr Jackson gave evidence at the determinative conference. Mr Abulamoun gave evidence, as did his supervisor, Mr Dylan Badger.

[5] Section 396 of the Act sets out four matters which I am required to decide before I consider the merits of the Application.

[6] There is no dispute between the parties and I am satisfied on the evidence that:

• (a) the Application was made within the period required in s 394(2) of the Act;

• (b) Mr Jackson is a person protected from unfair dismissal. Although Mr Jackson was employed by Mr Abulamoun as a casual employee, he received a roster most weeks and worked regular hours, usually between about 15 and 30 or more per week. I am satisfied on the evidence that Mr Jackson's whole period of service with Mr Abulamoun counted towards his period of employment because he was employed on a regular and systematic basis and he had a reasonable expectation of continuing employment by Mr Abulamoun on a regular and systematic basis. Mr Abulamoun did not contend to the contrary; and

• (c) Mr Abulamoun was a small business employer at the relevant time. Mr Abulamoun did not contend that Mr Jackson's dismissal was consistent with the Small Business Fair Dismissal Code. I am satisfied on the evidence that Mr Jackson's dismissal was not consistent with the Small Business Fair Dismissal Code, because Mr Abulamoun did not believe that Mr Jackson's conduct was sufficiently serious to justify immediate dismissal and Mr Abulamoun did not give Mr Jackson a reason why he was at risk of being dismissed.

[7] In relation to the fourth initial matter which I am required to consider, although Mr Abulamoun did not argue that Mr Jackson's dismissal was a genuine redundancy, I will consider whether it was after I make a determination as to whether Mr Jackson was dismissed and before I consider the merits of the Application. But first I will address the relevant facts.

[8] Mr Abulamoun is a subcontractor to Integrated Trolley Management Pty Ltd, which is the primary contractor to the Woolworths Group Ltd in respect of the Green Hills East Maitland Shopping Centre (Centre). Mr Abulamoun is contracted to collect trolleys for the Woolworths and Dan Murphy's stores at the Centre. Mr Abulamoun operates his business as a sole trader.

[9] At the Centre, Mr Abulamoun employs Mr Badger, as his supervisor, and a range of other employees to collect trolleys. Mr Jackson was one of those employees until May 2020.

[10] Mr Abulamoun's contract to collect trolleys at the Centre is a "flat rate" contract, with the result that he is paid the same each week to collect trolleys at the Centre regardless of how busy the Centre is. Because the Centre is busier at some times of the year than at other times, Mr Abulamoun needs a flexible workforce to cover the trolley collecting needs at the Centre.

[11] I accept the evidence given by Mr Abulamoun and Mr Badger that Mr Jackson was a very reliable employee at the start of the employment relationship, but over time they had concerns about Mr Jackson's reliability, particularly from March 2020 onwards. Although Mr Jackson often undertook shifts at short notice to assist Mr Badger and earn additional income for his family, there were occasions when Mr Jackson cancelled shifts at short notice. Some of those occasions took place over the summer of 2019/20 because Mr Jackson is, and was at the time, a member of the New South Wales Rural Fire Service and he was called in, often at short notice, to assist in fighting fires last summer. Other occasions took place after the conclusion of the fire season in about February 2020.

[12] Mr Jackson was rostered to work at the Centre from 2pm until 8pm on 20 May 2020. He experienced significant pain in his leg during the shift. At 3:14pm he sent a text message to Mr Badger in the following terms:

"Brah I cant do this whole shift the pain is getting heavier since starting."

[13] At 4:30pm on 20 May 2020, Mr Jackson sent a text message to Mr Badger in the following terms:

"Brah I am leaving I going up hospital to see what's going on and hopefully be fully recovered for tomorrow I am sorry bro I have tried ...

[14] Mr Badger then responded as follows:

[15] Mr Jackson provided the following response to Mr Badger:

"Ok except a phone call from sda I talking to them right now that sucks"

[16] Mr Jackson then left work and was driven by his wife to Maitland Hospital, where he was x-rayed and informed that he had pulled four or five muscles in his leg. Mr Jackson was given anti-inflammatory tablets to take.

[17] I accept Mr Jackson's evidence that he was unable to work the balance of his shift on 20 May 2020 as a result of the pain in his leg. I also accept Mr Jackson's evidence that he remained incapable of working for a day or two after 20 May 2020. He was rostered to work from 2pm until 9pm on 21 May 2020, but did not work on that day.

[18] On the evening of 20 May 2020, Mr Jackson spoke to Mr Abulamoun by telephone. Mr Jackson told Mr Abulamoun about the text message he received from Mr Badger earlier in the day and that he had left work. Mr Jackson told Mr Abulamoun that he wanted Mr Badger gone from the Centre. Mr Jackson also told Mr Abulamoun that he was going to take the matter up with the SDA, the Commission and security at the Centre. Mr Abulamoun told Mr Jackson not to worry about Mr Badger and that Mr Jackson still had a job. I accept Mr Jackson's evidence that Mr Abulamoun also told him that he had no right to contact the Commission or security at the Centre. Mr Jackson responded by saying he could not see the issue being resolved and hung up.

[19] At about 9am on 21 May 2020, Mr Jackson attended the Centre to find out what was happening with his job. There is a contest between Mr Jackson and Mr Badger as to what happened when Mr Jackson visited the Centre on the morning of 21 May 2020. Mr Jackson claims that Mr Badger was aggressive towards him and Mr Badger contends that Mr Jackson was the aggressor. Mr Jackson says that Mr Badger came bouncing over towards him in an aggressive manner and they had the following conversation:

"Are you serious? What is the go with yesterday's text message?

[20] Mr Jackson then says he went to speak to security at the Centre about Mr Badger's aggressive behaviour, who advised him not to have contact with Mr Badger until the matter was sorted out.

[21] Mr Badger contends that Mr Jackson bounced over towards him in an aggressive manner and they had the following conversation:

"Are you sure you want to do this? I will make sure you lose your job."

[22] I prefer Mr Jackson's account of his interaction with Mr Badger at about 9am on the morning of 21 May 2020 over the account given by Mr Badger for the following reasons. First, Mr Badger readily conceded in his evidence that he sent his text message to Mr Jackson on the previous afternoon in anger; he was angry and frustrated at what he believed to be Mr Jackson's unreliability to work the shifts he was rostered to work. In my view, it is likely that Mr Badger continued to feel that way on the morning of 21 May 2020.

[23] Secondly, Mr Jackson's oral evidence in relation to his interaction with Mr Badger on 21 May 2020 was consistent with his first witness statement in which he stated:[1]

"I went to the work site on the 21st May to speak to Dylan to see what was happening with my job and he started getting aggressive towards me.

I advised security of the center [sic] and was advised not to have contact until the matter was dealt with"

[24] Thirdly, Mr Badger did not make any mention in his witness statement of his interaction with Mr Jackson on 21 May 2020 or that he believed Mr Jackson had acted aggressively towards him. The first time that Mr Badger made that allegation was during his oral evidence.

[25] Fourthly, I accept Mr Jackson's evidence that he spoke to security at the Centre immediately after his interaction with Mr Badger on the morning of 21 May 2020. Mr Jackson's conduct in that regard is consistent with his account of his interaction with Mr Badger.

[26] At 9:41am on 21 May 2020, Mr Badger and Mr Jackson exchanged the following texts:

Because of the corona virus and the lack of hours at the moment, there won't be any shifts available for you at present.

I'll put you on call for fill in shifts and let you know when there's more work available.

[27] At 10:49am on 21 May 2020, Mr Badger sent the following text to Mr Jackson, which was in the same terms as his earlier text sent at 9:41am on that morning:[2]

Because of the corona virus and the lack of hours at the moment, there won't be any shifts available for you at present.

I'll put you on call for fill in shifts and let you know when there's more work available.

[28] Mr Abulamoun instructed Mr Badger to send such a text message to Mr Jackson on the morning of 21 May 2020.

[29] Mr Jackson tried to contact Mr Abulamoun on 21 May 2020 but could not speak to him because Mr Abulamoun had blocked Mr Jackson's mobile telephone number. Mr Badger also blocked Mr Jackson's mobile telephone number after he sent the text messages to him on 21 May 2020.

[30] Mr Jackson did not receive a roster and was not offered any shifts at the Centre after his discussion with Mr Badger on the morning of 21 May 2020. Mr Jackson did not have any further communication with Mr Abulamoun or Mr Badger after his discussion with Mr Badger on the morning of 21 May 2020, apart from during the course of these proceedings.

[31] I accept Mr Abulamoun's evidence that COVID-19 resulted in there being fewer people at the Centre in April and May 2020, which meant that he did not need to engage as many employees as usual to collect trolleys at the Centre. Apart from one or two weeks where Mr Abulamoun had his income from the Centre reduced in about April 2020, he did not suffer any reduction in revenue during the period from March to May 2020 because he received a "flat rate" for providing trolley collecting services at the Centre.

[32] Mr Abulamoun provided an analysis of the hours worked by his employees at the Centre in March, April and May (until 24 May 2020).[3] The hours for the final week of May 2020 were omitted from Mr Abulamoun's analysis. That analysis showed, amongst other things:

• Total hours for Mr Abulamoun's employees working at the Centre decreased by 320.5 (30.6%) in April 2020 compared to March 2020.

• Mr Jackson's hours of work at the Centre decreased from 116 in March 2020 to 94 in April 2020.

• Total hours for Mr Abulamoun's employees working at the Centre increased by 74 (10.2%) in the four week period from 27 April 2020 until 24 May 2020 compared to the four week period from 30 March 2020 to 26 April 2020.

• In the four week period from 27 April 2020 until 24 May 2020, Mr Jackson worked a total of 46 hours.

• Two out of the ten employees of Mr Abulamoun who worked at the Centre resigned in March 2020, with the result that they did not work any hours at the Centre in April or May 2020.

[33] Mr Abulamoun explained that the Centre became busier from towards the end of May 2020, so his employees (other than Mr Jackson) were offered additional hours of work.

[34] Mr Jackson was the only employee of Mr Abulamoun working at the Centre who was sent a communication of the kind sent by text from Mr Badger to Mr Jackson at 9:41am and again at 10:49am on 21 May 2020. Mr Jackson was the only employee of Mr Abulamoun working at the Centre who had his hours of work reduced to zero after 21 May 2020 or at any time in the period from March to May 2020. Mr Abulamoun gave different explanations for this. First, he explained that Mr Jackson was the least reliable employee working at the Centre. Secondly, Mr Abulamoun said that he did not think he could provide shifts to Mr Jackson after he filed his unfair dismissal application in the Commission. Thirdly, Mr Abulamoun stated that Mr Jackson did not want to undertake any work for him at the Centre after 21 May 2020. As to the last of these explanations, it was only on 1 July 2020 that Mr Jackson rejected a proposal to resolve his case by returning to work for Mr Abulamoun at the Centre.

[35] Mr Abulamoun engaged a new casual employee to work at the Centre from about the commencement of July 2020.

[36] The question of when a person has been dismissed is governed by s 386 of the Act:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by hers or hers employer."

[37] A dismissal takes effect when the employment relationship has ended.[4] The termination of the employment relationship is a different concept from the termination of an employment contract.[5]

[38] The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment.[6]

[39] The unfair dismissal regime in Part 3-2 of the Act applies to "national system employees" and "national system employers".[7] National system employees are employees of national system employers, being employers which bear particular characteristics such as to make them amenable to particular heads of legislative power of the Commonwealth in s 51 of the Constitution.[8] Beyond this, the Act does not seek to establish a statutory definition of what constitutes an employee. National system employees for the purposes of Part 3-2 of the Act are parties to an employment relationship at law.[9]

[40] Because the question of whether an employment relationship continues to exist is a question of fact,[10] it is necessary to consider all the relevant circumstances to determine whether there has been a communication of a dismissal by words or conduct. The range of facts or factors which may need to be examined to answer the question of whether an employment relationship has ceased to exist by reason of the communication of a dismissal by words or conduct will be determined by the circumstances of a particular case, and may include, without limitation, whether the employee is being paid a wage or other benefits or entitlements, whether the employee is attending or performing work for the employer, whether the employee is being rostered to work or offered work, whether, in the case of a business employing casuals, the employer is rostering other employees to do work in the same role as the applicant in a particular case, whether the employer is exercising, or has the ability to exercise, control over the execution of work by the employee,[11] whether either party has communicated to the other party a decision to terminate the relationship, and the terms of the employment contract.

[41] The question of whether an employment relationship has ceased to exist does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.[12]

[42] The expression "termination at the initiative of the employer" is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[13] There must be action by the employer that either intends to bring the relationship to an end or has that probable result.[14]

[43] I have no hesitation in finding that Mr Jackson's employment relationship with Mr Abulamoun came to an end on 21 May 2020. The relationship did not come to an end on 20 May 2020. Notwithstanding the clear text message sent in anger by Mr Badger to Mr Jackson on the afternoon of 20 May 2020, Mr Abulamoun told Mr Jackson on the evening of 20 May 2020 that he still had a job. Although Mr Jackson told Mr Abulamoun that he could not see the issue being resolved and hung up, Mr Jackson did not tell Mr Abulamoun that he quit or resigned or any words to that effect. Instead, Mr Jackson attended the Centre on the following morning to find out what was happening with his job. Neither Mr Badger nor Mr Jackson backed down from the opposing positions they had taken the previous day about Mr Jackson's early departure from work on 20 May 2020. Mr Jackson then received a text message from Mr Badger, on instructions from Mr Abulamoun, informing him that there would not be any shifts available for him "at present" and he would be put "on call for fill in shifts and let you know when there is more work available". No other employee received such a message. Mr Jackson was never sent another roster or offered another shift. Mr Badger and Mr Abulamoun blocked Mr Jackson's mobile telephone number, so he could not contact them. These facts and circumstances, considered together, would indicate to any reasonable person that the employment relationship between Mr Jackson and Mr Abulamoun was over.

[44] Further, I am satisfied that Mr Jackson was dismissed within the meaning of s 386(1)(a) of the Act. There is no suggestion that Mr Jackson was forced to resign within the meaning of s 386(1)(b) of the Act. It is clear that Mr Jackson did not agree to the termination of his employment with Mr Abulamoun. It was the conduct of Mr Abulamoun, as summarised in the previous paragraph, which was the principal contributing factor which resulted, directly or consequentially, in the termination of Mr Jackson's employment with Mr Abulamoun. I am also satisfied that Mr Abulamoun's conduct, as summarised in the previous paragraph, establishes that he intended to bring his employment relationship with Mr Jackson to an end, or at the least, had the probable result of bringing his employment relationship with Mr Jackson to an end. There was no realistic prospect of Mr Jackson remaining in employment with Mr Abulamoun after he received the text messages from Mr Badger on 21 May 2020, had his mobile telephone number blocked by Mr Abulamoun and Mr Badger, and, unlike other employees who worked for Mr Abulamoun at the Centre, did not receive any further rosters or offers of work.

[45] I find that Mr Jackson was dismissed on 21 May 2020. The communication of the dismissal took place by reason of a combination of the content of Mr Badger's text messages to Mr Jackson on 21 May 2020 and the conduct summarised in paragraph [43] above.

[46] Section 389 of the Act defines genuine redundancy as follows:

(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:

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

[47] "Associated entity" has the meaning given by s 50AAA of the Corporations Act 2001 (Cth).

The employer no longer required the employee's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise (s 389(1)(a))

[48] Mr Abulamoun did not contend that he no longer required Mr Jackson's job to be performed by anyone because of changes in the operational requirements of Mr Abulamoun's enterprise. Nor does the evidence support such a finding. I accept that there was a reduced need for employees to work as many hours at the Centre collecting trolleys in April and May 2020 as consequence of the impact of COVID-19. The situation, however, picked up from towards the end of May 2020. Mr Abulamoun employed a new casual employee to work at the Centre from the commencement of July 2020.

Compliance with any consultation obligation in a modern award or enterprise agreement that applied to the employment (s 389(1)(b))

[49] For there to be a genuine redundancy within the meaning of s 389 of the Act, Mr Abulamoun must have complied with any obligation in a modern award or enterprise agreement to consult about the redundancy. Mr Abulamoun accepted in his Employer's Response filed in the Commission that Mr Jackson was covered by a modern award (the Cleaning Services Award). The consultation obligations in that award were not met in relation to any redundancy of Mr Jackson's position.

Was it reasonable in all the circumstances for the person to be redeployed within the employer's enterprise or the enterprise of an associated entity of the employer (s 389(2))

[50] The evidence does not support a finding that it would have been reasonable for Mr Jackson to be redeployed within Mr Abulamoun's enterprise or any associated entity.

[51] For the reasons stated, Mr Jackson's dismissal was not a genuine redundancy within the meaning of the Act.

[52] I must take into account, in determining whether the dismissal was harsh, unjust or unreasonable, the matters set out in s 387 of the Act.

Section 387(a) - valid reason related to capacity or conduct

[53] Mr Abulamoun ran his case on the basis that he did not dismiss Mr Jackson. Mr Abulamoun did not run an alternative case that he had a valid reason to dismiss Mr Jackson. Mr Abulamoun contends that Mr Jackson would still be employed in his business at the Centre if Mr Jackson had not filed his Application in the Commission.

[54] The evidence does not support a finding of any sound, defensible or well-founded reason for Mr Jackson's dismissal related to his capacity or conduct. Mr Jackson had an acceptable reason to depart work part way through his shift on 20 May 2020 - the pain in his leg meant that he could not complete his shift. Mr Jackson also notified his supervisor of his need to leave work before he did so. The previous instances where it is contended that Mr Jackson notified Mr Badger at short notice that he was not available to work did not result in the termination of Mr Jackson's employment or the taking of any disciplinary action against him.

[55] I do not consider that Mr Jackson's conduct during his discussion with Mr Abulamoun on the evening of 20 May 2020, during his discussion with Mr Badger at the Centre on 21 May 2020, or at any other time, gave Mr Abdulamoun a sound, defensible or well-founded reason for Mr Jackson's dismissal related to his capacity or conduct.

[56] On the evidence there was no valid reason for Mr Jackson's dismissal. This weighs in favour of Mr Jackson's argument that he was unfairly dismissed.

[57] Section 387(b) relates to notification of "that reason", being a reason related to the person's capacity or conduct.[15]

[58] Because there was no reason for the termination of Mr Jackson's employment related to his capacity or conduct, s 387(b) is a neutral factor in relation to the question of whether Mr Jackson's dismissal was harsh, unjust or unreasonable.[16]

[59] Section 387(c) is also predicated on there being a reason for dismissal related to the capacity or conduct of the employee.[17]

[60] It follows that s 387(c) is a neutral factor in relation to the question of whether Mr Jackson's dismissal was harsh, unjust or unreasonable.[18]

[61] Mr Abulamoun did not unreasonably refuse to allow Mr Jackson to have a support person present to assist at any discussions relating to his dismissal. Accordingly, s 387(d) is a neutral factor in relation to the question of whether Mr Jackson's dismissal was harsh, unjust or unreasonable.[19]

Section 387(e) - warning about unsatisfactory performance

[62] Mr Jackson's dismissal did not relate to any unsatisfactory performance by him. It follows that s 387(e) is also a neutral factor in relation to the question of whether Mr Jackson's dismissal was harsh, unjust or unreasonable.[20]

Section 387(f)&(g) - size of enterprise and dedicated human resource management specialists

[63] Mr Abulamoun is a small employer. There is no suggestion in the evidence that Mr Abulamoun had any dedicated human resource management specialists or expertise in his enterprise at the time Mr Jackson's employment was terminated. In my view, these matters had an impact on the procedures followed in effecting Mr Jackson's dismissal. In particular, if relevant expertise had been available to Mr Abulamoun, I am satisfied that there would have been a discussion held with Mr Jackson prior to sending the text messages to him on 21 May 2020 and effectively taking him off the roster, in order to explain any concerns held by Mr Abulamoun or Mr Badger, giving Mr Jackson an opportunity to respond to those concerns and then clearly communicating with Mr Jackson what was happening in relation to his employment with Mr Abulamoun. In all the circumstances, I accept that these factors (s 387(f) & (g)) weigh, to some extent, in support of a conclusion that Mr Jackson's dismissal was not harsh, unjust or unreasonable.

[64] Mr Jackson was employed by Mr Abulamoun for about 21 months prior to his dismissal. I find that Mr Jackson performed well in the early part of his employment with Mr Abulamoun and assisted by undertaking shifts at short notice, but I accept that Mr Abulamoun and Mr Badger had concerns about Mr Jackson's reliability in the latter part of his employment. No formal warnings were given to Mr Jackson in relation to his conduct or performance. There is no dispute that Mr Abulamoun provided real and generous assistance to Mr Jackson on numerous occasions during his employment, including by making payments in advance to him and assisting him with transport to and from work on occasions. In all the circumstances, I consider that Mr Jackson's length and quality of service with Mr Abulamoun are neutral considerations in my assessment of the fairness of his dismissal.

Conclusion on harsh, unjust or unreasonable dismissal

[65] After considering each of the matters specified in s 387 of the Act, my evaluative assessment is that Mr Abulamoun's dismissal of Mr Jackson was harsh and unreasonable. Mr Jackson had a legitimate reason to need to leave work on 20 May 2020. He communicated with his supervisor before leaving work to attend the hospital. Mr Jackson was told by Mr Abulamoun on the evening of 20 May 2020 not to worry about Mr Badger and he still had a job, but when he attended the Centre the following day he and Mr Badger were still in disagreement about what had happened the previous day. Mr Jackson was then the only employee to be effectively taken off the roster and given no further shifts.

[66] Having found that Mr Jackson was protected from unfair dismissal, and that his dismissal was harsh and unreasonable, it is necessary to consider what, if any, remedy should be granted to him. Mr Jackson did not seek the remedy of reinstatement. I accept that it would be inappropriate to reinstate Mr Jackson in all the circumstances, particularly in light of the ongoing hostility between Mr Jackson and Mr Badger and Mr Jackson's view that Mr Abulamoun's workplace and vehicles at the Centre are unsafe.

[67] Section 390(3)(b) of the Act provides the Commission may only issue an order for compensation if it is appropriate in all the circumstances. 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.[21]

[68] Having regard to all the circumstances of the case, including the fact that Mr Jackson has suffered financial loss as a result of his unfair dismissal, I consider that an order for payment of compensation to him is appropriate.

[69] It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Mr Jackson. In assessing compensation, I am required by s 392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a) to (g) of this subsection.

[70] I will use the established methodology for assessing compensation in unfair dismissal cases which was set out in Sprigg v Paul Licensed Festival Supermarket[22] and applied and elaborated upon in the context of the current Act by Full Benches of the Commission in a number of cases.[23] The approach to calculating compensation in accordance with these authorities is as follows:

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

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 Mr Jackson would have received, or would have been likely to receive, if she had not been dismissed (s 392(2)(c))

[71] Like all calculations of damages or compensation, there is an element of speculation in determining an employee's anticipated period of employment because the task involves an assessment of what would have been likely to happen in the future had the employee not been dismissed.[24]

[72] I am satisfied on the balance of probabilities that if Mr Jackson had not been dismissed on 21 May 2020, he would have remained employed by Mr Abulamoun for a further eight weeks. I make this finding notwithstanding that each of Mr Jackson and Mr Abulamoun asserted that Mr Jackson would have remained employed at the Centre on an ongoing basis had he not been dismissed in May 2020. The evidence points to a different conclusion. In particular, Mr Jackson and Mr Badger were at loggerheads in the period leading up to 20 May 2020, with Mr Badger becoming increasingly frustrated that Mr Jackson was unreliable to work at various times. Mr Jackson effectively told Mr Abulamoun on 20 May 2020 that he needed to choose between Mr Badger and himself to work at the Centre. Mr Abulamoun was clearly unwilling to remove Mr Badger from the Centre or dismiss him. In addition, Mr Jackson gave evidence that he had serious concerns about the safety of the vehicles and equipment used in Mr Abulamoun's business at the Centre. Mr Jackson says he raised his concerns in the workplace, but no action was taken. This is the primary basis on which Mr Jackson contended that reinstatement was inappropriate. I am satisfied that a combination of the tension between Mr Jackson and Mr Badger and Mr Jackson's concern about an unsafe workplace would, in one way or another, have brought the employment relationship to an end within a period of eight weeks after 21 May 2020.

[73] I am satisfied on the balance of probabilities that if Mr Jackson had not been dismissed on 21 May 2020 he would have continued to be rostered to work in the eight week period from 22 May 2020. Although the demand for hours to be worked by Mr Abulamoun's employees picked up from about the end of May 2020, I find that Mr Badger's ongoing concern about Mr Jackson's reliability would have resulted in Mr Badger rostering Mr Jackson to work fewer hours than otherwise would have been the case in that eight week period. In all the circumstances, I find that Mr Jackson would have been rostered to work and would have worked, on average, 12.7 hours per week in the eight week period from 21 May 2020, which is the same number of average hours Mr Jackson worked in the three week period from 27 April 2020 to 17 May 2020. Mr Jackson worked a mixture of days, afternoons and weekends. His day rate was $26.30. His afternoon rate was $29.15. His weekend rate was higher again. I find that Mr Jackson would have worked a range of hours on day shift, afternoon shift and weekends in the eight week period from 22 May 2020. In my view, it is appropriate in all the circumstances to use the average of Mr Jackson's day and afternoon rate to calculate what he would have earned in the eight weeks from 22 May 2020. Eight weeks, working 12.7 hours each week, at an average pay rate of $27.73 = $2,817.39. I am satisfied that is the remuneration that Mr Jackson would have received, or would have been likely to receive, if he had not been dismissed.

Remuneration earned (s 392(2)(e)) and income reasonably likely to be earned (s 392(2)(f))

[74] Mr Jackson has not earned any remuneration since his dismissal. He has only been in receipt of JobSeeker payments from the federal government. Accordingly, $2,817.39 is the gross amount of remuneration Mr Jackson would likely have earned had he not been dismissed by Mr Abulamoun and instead continued to be employed by Mr Abulamoun until the conclusion of an eight week period commencing from 22 May 2020. This calculation is intended to put Mr Jackson in the position he would have been in but for the termination of his employment.[25]

[75] No submission was made on behalf of Mr Abulamoun that any particular amount of compensation would affect the viability of Mr Abulamoun's enterprise.

[76] My view is that no adjustment will be made on this account.

[77] My view is that Mr Jackson's period of service with Mr Abulamoun (about 21 months) does not justify any adjustment to the amount of compensation.

[78] The evidence establishes that Mr Jackson made reasonable efforts to obtain alternative employment following his dismissal. In particular, Mr Jackson applied for numerous jobs but, unsurprisingly in the current environment, has not been able to obtain alternative employment.

[79] In all the circumstances, my view is that Mr Jackson acted reasonably to mitigate the loss suffered by him because of the dismissal and I do not consider it appropriate to reduce the compensation on this account.

[80] It is necessary to consider whether to discount the remaining amount ($2,817.39) for "contingencies". This step is a means of taking into account the possibility that the occurrence of contingencies to which Mr Jackson was subject might have brought about some change in earning capacity or earnings.[26] Positive considerations which might have resulted in advancement and increased earnings are also taken into account.

[81] The 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.[27]

[82] Because I am looking in this matter at an anticipated period of employment which has already passed (eight weeks from 22 May 2020), there is no uncertainty about Mr Jackson's earnings, capacity or any other matters during that period of time.

[83] In all the circumstances, my view is that it is not appropriate to discount or increase the figure of $2,817.39 for contingencies.

[84] Save for the matters referred to in this decision, my view is that there are no other matters which I consider relevant to the task of determining an amount for the purposes of an order under s 392(1) of the Act.

[85] I have considered the impact of taxation, but my view is that I prefer to determine compensation as a gross amount and leave taxation for determination.

[86] Mr Jackson did not commit any misconduct, so my view is that this has no relevance to the assessment of compensation.

Shock, distress or humiliation, or other analogous hurt (s 392(4))

[87] I note that in accordance with s 392(4) of the Act, the amount of compensation calculated does not include a component for shock, humiliation or distress.

[88] The amount of $2,817.39 is less than half the amount of the high income threshold immediately before the dismissal. It is also less than the total amount of remuneration to which Mr Jackson was entitled in his employment with Mr Abulamoun during the 26 weeks immediately before his dismissal. In those circumstances, my view is that there is no basis to reduce the amount of $2,817.39 by reason of s 392(5) of the Act.

[89] No application has been made to date by Mr Abulamoun for any amount of compensation awarded to be paid in the form of instalments.

[90] 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 the amount of $2,817.39.[28]

[91] For the reasons I have given, my view is that a remedy of compensation in the sum of $2,817.39 (less taxation as required by law) in favour of Mr Jackson is appropriate in the circumstances of this case. An order will be made to that effect [PR721500].

[4] Siagian v Sanel Pty Ltd [1994] IRCA 2 (Wilcox CJ); Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]

[5] Visscher v Giudice and Others [2009] HCA 34; (2009) 258 ALR 651 at [53] to [55] per Heydon, Crennan, Keifel and Bell JJ; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]- [22]; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [31]- [50]

[6] Commonwealth Bank of Australia v Barker [2014] HCA 32; (2014) 312 ALR 356 at 357 [1]

[8] Ayub v NSW Trains [2016] FWCFB 5500 at [25]

[10] Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 428; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [27]

[11] Humberstone v Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389 at 404; Stevens v Brodribb Sawmilling Co. Pty Ltd [1986] HCA 1; (1986) 160 CLR 16 at 24 & 35; Forstaff v Chief Commissioner of State Revenue [2004] NSWSC 573; (2004) 144 IR 1 at [91]

[12] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [45], applying Koutalis v Pollett [2015] FCA 1165; 235 FCR 370 at [43]

[13] Khayam v Navitas English Pty Ltd [2017] FWCFB 5162 at [75(2)]

[14] Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 at [24]

[15] UES at [43]; Ventyx at [143]

[16] UES at [43]; Ventyx at [143]

[17] UES at [43]; Ventyx at [144]

[18] UES at [43]; Ventyx at [144]

[20] UES at [45]; Ventyx at [146]

[21] Kable v Bozelle, Michael Keith T/A Matilda Greenbank [2015] FWCFB 3512 at [17]

[22] (1998) 88 IR 21

[23] Tabro Meat Pty Ltd v Heffernan [2011] FWAFB 1080; Read v Golden Square Child Care Centre [2013] FWCFB 762; Bowden v Ottrey Homes Cobram [2013] FWCFB 431

[24] Double N Equipment Hire Pty Ltd v Humphries [2016] FWCFB 7206 at [16]- [17]

[25] Bowden at [24], citing Ellawala v Australian Postal Corporation Print S5109 at [35]

[26] Ellawala v Australian Postal Corporation Print S5109 at [36]

[27] Enhance Systems Pty Ltd v Cox PR910779 at [39]

[28] Smith v Moore Paragon Australia Ltd [2004] AIRC 57; (2004) 130 IR 446 at [32]

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