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[2013] FWC 8679
Fair Work Commission
2013-11-07
Commissioner Mckenna
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Technical and Further Education Commission T/A TAFE NSW (No.3)
Application for unfair dismissal remedy - remedy.
[1] This is the third decision concerning an application by Lynda Pykett ("the applicant") made pursuant to s.394 of the Fair Work Act 2009 ("the Act") seeking an unfair dismissal remedy arising from her termination of employment by the Technical and Further Education Commission T/A TAFE NSW ("the respondent") (see Pykett v Technical and Further Education Commission T/A TAFE NSW [2013] FWC 4982 ("Pykett No.1") and Pykett v Technical and Further Education Commission T/A TAFE NSW [2013] FWC 8196 ("Pykett No.2")).
[2] An order has already issued [PR543507] in conjunction with the decision in Pykett No.2 concerning the applicant's reinstatement pursuant to s.391(1)(b) of the Act. There were, as noted in Pykett No.2 from [46], outstanding matters concerning the question of making orders, if any, for continuity of employment and lost pay. The provisions of the Act relevant to this application as to remedy read 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.
(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.
(3) 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 cause the employer to pay to the person an amount for the remuneration lost, or likely to have been lost, by the person because of the dismissal.
(4) In determining an amount for the purposes of an order under subsection (3), the FWC must take into account:
(a) 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 reinstatement; and
(b) the amount of any remuneration reasonably likely to be so earned by the person during the period between the making of the order for reinstatement and the actual reinstatement."
[3] On 25 October 2013, the parties made submissions concerning the making of orders under the Act pursuant to s.391(2) concerning continuity of the applicant's employment and pursuant to s.391(3) in relation to an amount for the remuneration lost, or likely to have been lost, by the applicant because of the dismissal.
[4] There was nothing advanced in the parties' submissions to weigh against the making of an order pursuant to s.391(2) of the Act. I otherwise consider a restorative order in this regard is appropriate given, in particular, the applicant's age and length of service with the respondent.
"[41] ... The particular occupational focus of the applicant's experience in her employment over more than three decades with the respondent might perhaps be considered to weigh against her finding alternative employment other than with the respondent itself. I accept the submissions the applicant would be likely to encounter difficulties in finding alternative employment and, in this regard, the applicant's age again arises."
[6] The submissions on 25 October 2013 confirmed the applicant has not earned any remuneration from employment or other work during the period of the dismissal and the making of the order in PR543507. In Pykett No.2, I had noted at [47] the payments already received by the applicant in connection with her termination of employment "obviously will need to be considered". These payments included redundancy payments.
[7] Nothing was advanced in the parties' submissions that would weigh against the making of an order pursuant to s.391(3) of the Act and I otherwise consider an order in this regard is appropriate.
[8] The parties have now conferred about financial calculations in this respect. On 6 November 2013, documentation was lodged confirming "the amount of backpay to be paid and the terms of the draft order have been agreed between the parties".
[9] The money amount that forms the basis of the order pursuant to s.391(3) of the Act has been calculated as a result of the parties' discussions. The figure takes into account the payments already made by the respondent to the applicant in connection with the termination of the employment. In consequence, there is no double dipping, as it were, in the payments now specified in the orders. I consider it is appropriate to make an order pursuant to s.391(3) of the Act, reflecting calculations and terms agreed by the parties.
[10] An order concerning continuity of employment and lost pay has been issued in conjunction with the issuing of this decision.
Hearing details (re orders concerning continuity and lost pay):
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# Pykett
Technical and Further Education Commission \[2013\] FWC 8679