Fair Work Act 2009

s.604 - Appeal of decision

Appeal against decision [2021] FWC 5305 of Commissioner Wilson at Melbourne on 10 November 2021 in matter number U2021/5033 - permission to appeal granted.

[1] Mr Saki Elefantis (Mr Elefantis or the Appellant) has lodged an appeal, for which permission is required in relation to a decision of Commissioner Wilson (Decision)[1] issued in Melbourne on 10 November 2021. In the Decision the Commissioner found that the Appellant had been unfairly dismissed, determined to award compensation but ultimately determined no award of compensation was payable. The Commissioner's concluded that compensation was not payable because he found that amounts received by the Appellant from an industry scheme providing for portable redundancy payments, into which the Respondent had made contributions on the Appellant's behalf, should be deducted.

[2] The Appellant was employed by The Trustee for Timber Ridge Unit Trust which trades as Auscut (Respondent). At the beginning of 2021 Ms Catherine Thomson took over, on the death of her father, as Managing Director for the Respondent. In March 2021 Ms Thompson introduced revised timesheets which she required employees to complete and submit on a Monday morning.[2]

[3] On 11 May 2021 Ms Thomson became aware that the Appellant was not submitting his timesheets - rather he had developed a work around with one of the office staff - and confronted him. An argument ensured in which the Respondent and Ms Thomson were shouting at each other. Ultimately, that day, Ms Thomson gave the Appellant a letter in which he was advised his employment was terminated effective immediately due to serious misconduct.

[4] The Appellant did not dispute that he failed to complete and submit his timesheets as required.

[5] On considering the evidence of both the Appellant and Ms Thomson the Commissioner found that:

[17] Neither [the Appellant] or Ms Thomson was an especially compelling witness and the evidence of each must be qualified. [The Appellant] did not want to accept he had been instructed to submit timesheets and continued to present the view that it was acceptable for Ms Legitsas to complete and submit them on his behalf. He had no insight as to his unacceptable or provocative conduct and much of his evidence sought to justify how he was the victim of Ms Thomson's aggression, when that characterisation is simply not believable. Ms Thomson was genuinely afraid of [the Appellant's] temper, both as demonstrated on the day and by reputation previously. However, as with [the Appellant], she would not accept her own failings or that her own conduct was unacceptable for a workplace, let alone the managing director of a workplace. Neither protagonist adequately addressed in their evidence that other witnesses, notably Mr O'Connell, Mr Batchelor and Mr Hughes, each reported hearing mutual yelling and shouting and that each had been involved. As such the evidence of both [the Appellant] and Ms Thomson about what occurred on 11 May 2021 must be regarded as unreliable on the main contentions.

[6] The Commissioner made various findings in relation to the completion of timesheets and the argument of 11 May 2021 including:

• In or around March 2021 [the Appellant] and other employees were directed to fill in and submit timesheets on a weekly basis. While others conformed, [the Appellant] did not. Why that is so is not adequately explained in the evidence...

• It is more likely than not that Ms Thomson told [the Appellant] that she knew he was not completing and submitting his timesheets and that he did not at any time say that he would do so either for the past week's work or in the future.

• ...

• I do not accept [the Appellant's] characterisation of the last stage of the argument as him walking away from Ms Thomson in order to defuse the situation; such is extremely unlikely given how the argument developed and progressed. Instead it is likely he walked away simply because he did not accept what Ms Thomson was saying.

• Ms Thomson dismissed [the Appellant] in the course of the argument. It is likely that his dismissal followed her stating to him that he must complete his timesheets, probably put as an ultimatum to do so or no longer work for Auscut, which was not accepted by [the Appellant]. [3]

[7] The Commissioner firstly considered and found that the dismissal of the Appellant was not consistent with the Small Business Fair Dismissal Code and so proceeded to determine if it was harsh, unjust or unreasonable pursuant to s.387(a)-(h) of the Fair Work Act 2009 (FW Act).

[8] In finding that there was no valid reason for dismissal (s.387(a) of the FW Act) the Commissioner said:

[47] ...even in tandem with the matters of his belligerence and physical conduct, the failure to agree to submit timesheets does not rise in this case to be a valid reason for dismissal since it seems the unambiguous direction of complete the time sheets or leave was only given to [the Appellant] in the course of the altercation with Ms Thomson. His failure to agree should have been tested and if he failed to heed the direction, there may have then been a valid reason for dismissal

[48] Ms Thomson's feelings of anger or anxiety during the argument should have been a trigger for her to step back, return to calm and, at a later time, decide what should be done about [the Appellant]; but they were not. Instead, she dismissed [the Appellant] in the course of the altercation and then swiftly afterward confirmed his dismissal in writing. Thinking the matter through, investigating [the Appellant's] claims, or why Ms Legitsas was completing his timesheets, or seeking advice about what had just transpired, should have brought Ms Thomson to the conclusion that immediate termination was not justified.

[49] Consequently, when Ms Thomson dismissed [the Appellant's] in the heat of the moment Auscut did not have was (sic) a valid reason for the dismissal related to his capacity or conduct.

[9] The Commissioner next considered matters under s.387(b)-(h) of the FW Act before concluding that the dismissal of the Appellant was harsh, unjust or unreasonable.[4]

[10] The Commissioner then considered the question of remedy, noting that the Appellant did not seek reinstatement. Being satisfied that reinstatement would be inappropriate the Commissioner proceeded to consider compensation, setting out those matters in s.392(2) of the FW Act which must be taken into account in determining the amount to be paid.

[11] The Commissioner found:

• That there was no evidence about the effect of an order of compensation on the Respondent's business; and

• That the Appellant had been employed by the Respondent for in excess of 17 years and that was a factor for him to take into account.[5]

[12] In deciding the remuneration the Appellant would have received or have been likely to receive had he not been dismissed the Commissioner said:

[71] [the Appellant] was summarily dismissed for the argument which developed when he was challenged by Ms Thomson principally regarding his failure to submit weekly timesheets as directed as well as what was said to be his "continued threatening and intimidating behavior (sic) towards staff". He should not have been dismissed for those matters and a more reasonable action by Auscut would have been to issue a written warning to [the Appellant] in unambiguous terms that he would be dismissed if he lost his temper with anyone at work again, or if he failed to heed directions he was given by Auscut, such as to complete and submit timesheets on time.

[72] [the Appellant] though is not a person who would particularly heed such a warning. Ms Thomson had been belligerent and provocative toward him certainly, however the evidence suggests he is a person who likely does what he wants to do and resists things he does not. For her part, Ms Thomson saw the payroll system she inherited upon arrival as inadequate and requiring change. She directed there be a change, and what she put in place was neither unreasonable nor unusual. Had she not said to [the Appellant] in the argument that took place that he was dismissed, but instead simply said, "this is my system and you have to follow it unless you give me a reason why you cannot" it is doubtful the Applicant would either have changed or changed for long.

[73] A warning on the subject would likely have been breached soon after it was given. My assessment then of [the Appellant's] anticipated remaining period of employment is that it would be no more than 4 to 6 weeks. Because of the need to take into account his lengthy period of employment, I find the remaining period of employment would be 6 weeks.

[13] The Commissioner considered the evidence before him in relation to the Appellant's pay and determined that the Appellant would have received, or would have been likely to receive, $11,046 (inclusive of superannuation) had his employment not been terminated.

[14] The Commissioner determined that a reduction in compensation of 5% should be imposed in relation to the Appellant's "tepid" effort to mitigate his loss.[6]

[15] In considering the amount of remuneration earned by the Appellant from other employment or other work during the period between dismissal and the making of the order for compensation the Commissioner noted that the Appellant applied to Incolink and received payments from Incolink totalling $66,117. The Commissioner did not consider the Appellant would receive any other income prior to receipt of any compensation amount as he was not, at the time of hearing, employed. The Commissioner took into account the Appellant's age and length of service as factors which would suggest compensation should be "higher than would otherwise be the case".[7]

[16] The Commissioner proceeded to apply the "Sprigg formula"[8] to determine the amount of compensation. He set out the four steps in Sprigg:

Step 1: Estimate the remuneration the Applicant 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.[9]

[17] With respect to Step 1 the Commissioner referred to his earlier determination of how long the Appellant would have remained in employment to determine estimated remuneration under this step at $11,046.

[18] With respect to Step 2 in Sprigg the Commission said that:

**[85] ...**The Full Bench unequivocally found in ERGT Australia Pty Ltd v Kevin Govender (Govender) that redundancy or severance pay is not an excluded amount and is instead an amount to be deducted at this step in the calculation of compensation...

[19] He noted the Appellant's representative's argument that the money paid to the Appellant was:

[86] ...distinguishable since he has been in receipt not of redundancy pay as such, but rather payments upon cessation of employment from a portable severance scheme, which is not a subject considered in _Govender..._The industrial means by which the employer's contributions were made to Incolink would suggest the path followed in Govender should not be followed here...

[88] ...it is the case that [the Appellant] was not made redundant but dismissed for misconduct. Under any view redundancy payments are not due to him. However, the consideration at this Step is whether the payments made to him by Incolink are moneys earned since termination.

[21] The Commissioner considered decisions in which payments from Incolink and BERT (a similar scheme) had been excluded from consideration in the determination of compensation[10] but determined that each of these decisions was inconsistent with the decision in Govender[11]. Whilst acknowledging that the decision Papadopoulos v MC Labour & Anor (Ruling No. 2),[12] the Commissioner ultimately concluded that:

[89] Papadopoulos potentially gives rise to a body of reasoning which may have been inadequately explored in Govender, however it must be observed that Govender was also dealing with the matter of whether a contractual payment should be excluded from deduction. Govender explicitly decided that redundancy pay "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." It would be disharmonious with the Full Bench's reasoning in Govender for me not to make the deduction here.

[22] The Commissioner therefore determined to deduct the payments to the Appellant from Incolink from the amount determined in Step 1 of Sprigg. After considering the relevant matters at Step 3 and Step 4 the Commissioner set out the finality of his calculations as to compensation for the Appellant.[13] After deducting the amount of Incolink payments made to the Appellant of $66,117 the Commissioner determined that no order for compensation would be made as the deductions from compensation was greater than the lost remuneration, taking the determination of compensation payable, to nil.

[23] The appeal against the Decision is made on two grounds:

• The Commission erred in its calculation of compensation by taking into account the [Appellant's] lncolink payments, as remuneration earned by the Applicant since his termination, as part of the Sprigg test and under s392(2)(e) of the Act.

• The Commission made a significant error of fact in finding that, had [the Appellant] not been dismissed, his employment with the respondent would have continued for a period of only 6 weeks.

[24] The decision is not otherwise challenged.

[25] 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.[14]

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

(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.

[27] In Coal & Allied Mining Services Pty Ltd v Lawler, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the FW Act as "a stringent one".[15] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[16] In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest. These considerations were that:

... 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...[17]

[28] 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.[18] 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.[19]

[29] The Appellant sought permission to introduce further evidence for consideration by the Full Bench in the form of an affidavit of Ms Emma Barnes-Whelan, Legal Officer of the Victorian/Tasmanian Branch of the Construction and General Division of the Construction, Forestry, Maritime, Mining and Energy Union. The Respondent objected to the admission of some aspects of the affidavit.

[30] After hearing from the parties and a brief adjournment we advised the parties that we had decided to admit the affidavit.[20]

[31] We did so as we considered the affidavit relevant to the proceedings before us in that it went to earnings of the Appellant post the termination of his employment. Had we granted both grounds of appeal it was the Appellant's submission that we should re-determine the matter of compensation ourselves. For this reason, information in relation to the Appellant's earnings since the termination of his employment is relevant.

[32] The affidavit also attached a full copy of the "Redundancy Payment Approved Workers Entitlement Fund 1. Consolidated Trust Deed and Trustee Determinations (as at 31 October 2014)" (the Trust Deed)[21] in relation to the relevant Incolink fund. We considered it prudent, given the matters raised on appeal, that we have access to the relevant document.

[33] Neither party took issue with the ability of the Full Bench to admit fresh evidence in the appeal proceedings.

[34] The FW Act sets out the requirements for the calculation of 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.

[35] We consider that it is in the public interest to grant permission to appeal. The matter arising under appeal ground 1 in relation to payments received from Incolink (and similar funds) has not been considered before by a Full Bench and it is appropriate that guidance on this issue be given.

[36] The Commissioner determined that, consistent with the decision in Govender, the amount of compensation payable to the Appellant should be reduced in accordance with s.392(2)(e) of the FW Act taking into account money he had received from Incolink.

[37] The Appellant submits that the Commissioner erred in calculating compensation due to him in taking into account Incolink payments received as remuneration earned by the Appellant since the termination of his employment.

[38] The Appellant submits that "remuneration earned" as referred to in s.392(e) of the FW Act is concerned with remuneration earned between the dismissal and making of the order for compensation. The monies deposited into the Appellant's Incolink account was earned by the Appellant in each week he provided his service to the Respondent. Even if the Incolink payments are not then received by the Appellant until after the termination of his employment this does not alter when the money was, in fact, earned and this occurred while the employment relationship was on foot.

[39] In this respect the Appellant says that it is not unusual for money earned to be paid to a worker after the time it is earned - the payment of wages is commonly made a week, fortnight or month after the work for which it is paid occurs.

[40] The Appellant submits that Incolink payments are analogous to superannuation payments received from a superannuation or pension fund and should be seen as delayed remuneration for work carried out.

[41] The Appellant further submits that the purpose of an award of compensation is to "put the applicant in the financial position he or she would have been in but for the termination of their employment."[22] He submits that if Incolink payments are offset against any award of compensation the net result is that he would not be returned to the financial position he would have been in but for the dismissal. Further, the Appellant submits that the deduction of Incolink payments from an award of compensation would depart from the way in which similar payments have been treated at common law.[23]

[42] The Appellant sought to distinguish the circumstances in his case from that considered by the Full Bench in Govender. The Appellant submits that in Govender the focus was on whether a redundancy payment was remuneration within the meaning of s.392(2)(e) and should be deducted from any proposed award for compensation. The critical finding in Govender was that "to make an award of compensation where it was apparent there was no loss arising from the dismissal" was an error. Further, the Appellant submits that the Commissioner incorrectly equated the circumstances in this case with those in Govender in circumstances where the cases are clearly distinguishable.

[43] The Respondent submits that the payment made to the Appellant from Incolink must be assessed by reference to the scheme under which it was paid.

[44] The Respondent submits that the NES redundancy pay entitlement does not apply to the Appellant as an "industry specific redundancy scheme" applies (the building industry redundancy scheme) which:

• Has a broader definition of redundancy than that applicable under the NES;

• Provides a minimum entitlement to redundancy pay calculated on a formula based on continuous service;

• Provides, on termination, that a redundant employee is entitled to the greater of the formula derived amount and the benefit paid via the applicable "redundancy pay scheme"; and

• Allows the relevant employer to offset an employee's redundancy pay entitlement by contribution to a redundancy pay scheme.

[45] The Respondent submits that, under the provision of the Timber Ridge Unit Trust (The Trustee for) T/As AUSCUT and the CFMEU (Victorian Construction and General Division) Concrete Sawing and Drilling Enterprise Agreement 2016-2018 (enterprise agreement) it offset its redundancy obligations by paying into the Incolink Redundancy Fund and it was from this fund the Appellant received payment following termination of his employment.

[46] In these circumstances the Respondent submits that the Appellant's case is not distinguishable from the decision in Govender. Firstly it says that the redundancy pay scheme which applied to Mr Govender was substantially identical to the NES provisions and the redundancy pay scheme applicable to the Appellant is of the same character as the NES; second the Respondent submits that Govender was not decided on the basis that the employee received a windfall on termination; third it is incorrect to say that the redundancy scheme payment to the Appellant was earned prior to dismissal and fourth, it is no answer to say that Govender is distinguishable because the Appellant, had he not been dismissed, may have received the money at some time in the future. In this respect it submits that the entitlement remains contingent until it is triggered by redundancy.

[47] We have determined that the Commissioner was in error in deducting payments from Incolink to the Appellant in determining compensation_._

[48] Firstly, by virtue of his termination of employment having been for reasons of misconduct the Appellant was not entitled under the enterprise agreement that applied to his employment to "redundancy" payments. For this reason, the payment to him from Incolink cannot be held to be a "redundancy" payment. The reasoning of the Full Bench in Govender is therefore distinguishable as it relates to the treatment of redundancy payments.

[49] The enterprise agreement defines redundancy as (underlining added):

Redundancy means a situation where an employee ceases to be employed by an employer to whom this agreement applies, other than for reasons of misconduct or refusal of duty. Redundant has a corresponding meaning[24]

[50] The Appellant's employment was terminated for reasons of misconduct. His termination therefore could not be for reasons of redundancy and the payment he received from Incolink therefore cannot be said to be a redundancy payment as defined in the enterprise agreement

[51] We therefore reject the arguments of the Respondent that the money received by the Appellant from Incolink was "redundancy" pay. Whilst we acknowledge that Incolink, into which contributions on behalf of the Appellant were made, is described in the enterprise agreement as the "Redundancy Payment Approved Workers Entitlement Fund 1" we do note that the terms under which the Appellant could access money in Incolink is established in the Trust Deed and is not subject to any provision of the Agreement.

[52] Further, Incolink is no more than the "approved specific industry scheme" such that payments to it offset any redundancy entitlement. It would be wrong in our view to read any more into it or to the basis of any withdrawal from a worker's account. We also note that under modern awards, employers can choose to offset their obligations to make redundancy payments, by making contributions into such funds. Employers may also include provisions in enterprise agreements in relation to redundancy funds. The benefits to employers are that contributions are made at the rate the employee is paid at the relevant time and not at a higher rate that the employee may be receiving at the time the employee is made redundant. Employers have certainty that their obligations to pay redundancy under the NES have been fulfilled by payment to the fund. The benefit for employees is that the fund may allow them to access their accounts in circumstances where they have been dismissed for reasons other than redundancy.

[53] Second, the Incolink Trust Deed makes clear that the moneys paid into Incolink over the course of employment are monies that are placed into the worker's account and that are payable to the worker when the worker is terminated from employment (without specification of the reason for termination).

[54] Clause 7 of the Trust Deed states that contributions paid by an employer into Incolink "must be credited to the Worker's...Account."

[55] Clause 9 of the Trust Deed provides as follows (underlining added):

9. Benefits Payable to Worker's - Worker's Account

9.1 Where the employment of the Worker (other than an Approved Worker) is terminated for any reason then, upon the Trustee receiving a written request form the Worker...at or after the time of termination of employment in a form prescribed by the Trustee and the Worker is still out of work at the time the Worker submits the written request to the Trustee, the Trustee must pay to the Worker the lesser of:

(1) a redundancy benefit not exceeding the maximum initial payment benefit as prescribed from time to time in the Redundancy Pay Agreement; and

(2) a redundancy benefit equal to the amount standing to the credit of that Worker in her or her Worker's Account as at the date the request is made.

9.2 If the Worker remains out of work for four (4) consecutive weeks commencing the date after termination of his or her employment, the Worker is entitled to withdraw the balance (if any) of his or her Account...

[56] It is apparent from the terms of the Trust Deed that the money received from Incolink is held in a worker's account and is paid out at the request of the worker on termination of employment and access is not limited to termination due to redundancy.

[57] We accept that, regardless of the particular employer, or any change of employer, any contributions on behalf of a specified worker paid into the Worker's Account, are held for the benefit of the worker, and are not held for the benefit of the employer nor disbursed on account of or at the discretion or direction of the employer.

[58] Third, it would be an absurdity if an employer, when faced with an unfair dismissal application, could rely on contributions made on behalf of a worker into Incolink or a withdrawal by a worker from their Incolink account, in circumstances where the decision as to when and what amount is to be withdrawn from Incolink, is a matter for the worker and not the employer. This can best be illustrated by example.

[59] Two employees, both with the same length of service with the employer, are made "redundant". Employee A has not accessed their Incolink account. Employee B, given their financial situation, has withdrawn from their account. On application for a remedy for unfair dismissal both are found not to be genuinely redundant within the meaning of s.386 of the FW Act. Otherwise, both are in the same situation at the time compensation is determined. To accept the Respondent's argument in this case, the Commission would be required to take into account in the calculation of compensation to be awarded to Employee B the amount received by them from Incolink. No such reduction is sought for Employee A or considered by the Commission because Employee A has not sought access to Incolink.

[60] Following the finalisation of compensation Employee A accesses from Incolink the same amount that Employee B had accessed prior to the determination of compensation. As a result of their unfair dismissals Employee A is well ahead financially if it is that Employee B's compensation is reduced by the amount accessed from Incolink. Such an outcome suggests no consistency in the application and determination of compensation awarded as a result of unfair dismissal.

[61] This can be distinguished from a redundancy payment as generally understood under the NES (i.e. not an industry specific scheme such as that in the building industry). On making an employee redundant the employer makes payment to the employee of the amount of redundancy due as part of the final payment made by the employer direct to the employee. In the above scenario, Employee A and B would have received an equivalent payment from the Respondent which then may be considered as per the principal in Govender.

[62] Further, it seems to us inequitable that an employer could argue for a reduction on compensation to be awarded to an unfairly dismissed employee based on money accessed from the worker's Incolink account when part of that money may have been contributed by other employers from previous employment of the worker. That is, there is no necessary or direct link between what may be in a worker's Incolink account and withdrawn by the worker and the amount contributed by the employer who instigated the dismissal found to be unfair as defined in the FW Act.

[63] We would also observe that, consistent with the foregoing, Incolink funds are accessed by a worker at their own discretion and not under the control of the employer further supporting a conclusion that this matter is distinguishable from Govender.

[64] Finally, we do not consider that money drawn from Incolink (and hence paid by Incolink) after termination of employment falls within the category of money earned in the period between the termination of employment and the making of an order for compensation (s.392(2)(e)) of the FW Act:

• The money was earned and paid periodically into the Appellant's account in accordance with the enterprise agreement and requirements of the Trust Deed during the period of the Appellant's employment.

• The money was paid to Incolink by the Respondent in accordance with the enterprise agreement for each week the Appellant worked.

• The money accumulated into the Appellant's account whilst employed on account of the time worked in the week preceding payment. The Respondent paid the amount required to be paid at the time the work was done.

• The money withdrawn by the Appellant was paid to him by Incolink.

[65] In these circumstances we do not accept, given its characteristics, that the money paid out of Incolink is remuneration earned after termination of employment although it is related to work done. Rather we consider it is more akin to "money received from other sources"[25].

[66] We do not consider that any assistance is provided by the decision on Govender as relied on by the Respondent.

[67] In concluding this aspect of the appeal, we do observe that the chapeau of s.392(2) says that, in determining the amount of compensation "the FWC must take into account all of the circumstances of the case" including those matters listed in s.392(2). Whilst, as was said in Govender, the methodology in Sprigg should be applied in a consistent manner this cannot detract from the importance, in determining compensation, to take heed of the requirements of the FW Act and take into account all of the circumstances of the case in determining the amount of compensation to be paid.

[68] For the reasons given we grant the appeal with respect to Ground 1 - Incolink payments.

[69] The Commissioner's reasons for reaching his conclusion that the Appellant would only have remained employed by the Respondent for a period of 6 weeks are set out in the Decision at paragraphs [69]-[75]. In essence, while concluding that the Appellant should have been issued with a final warning in relation to completing his time sheets the Commissioner also found that the Appellant would not heed such a warning and that, while Ms Thomson had been belligerent and provocative "the evidence suggests [the Appellant] is a person who likely does what he wants to do and resists things he does not" and that "it is doubtful that the [Appellant] would have changed or would have changed for long."[26] The Commissioner found that a warning would likely have been breached soon after being issued. For these reasons he determined the likely period of employment to be 6 weeks.

[70] The Appellant says that the Commissioner's findings of fact at paragraphs [72]-[73] were not open to him because (footnotes in original):

(a) The evidence does not provide any basis for the findings made at [72], and therefore it was not open to Commissioner Wilson to reach the conclusion at [73].

(b) The propositions in [72] were never put to Mr Elefantis. In particular, the proposition that Mr Elefantis would not have changed, or changed for long (in circumstances where he had been warned that it threatened his ongoing employment) was never put to Mr Elefantis. There was no evidence supporting such a conclusion. The evidence (explained below) was to the contrary effect.

(c) The findings at [72] are inconsistent with following statements made by Mr Elefantis[27]

MR ZICCONE: So you were aware of the requirement to complete the timesheets and that it was now being - - -?---Yes, yes, that's correct, I was aware. I was aware of the new system. It just took me a bit of time or - - -

But you didn't want to do them, did you?---Not at all, I did want to do them, it's just I got complacent, as in 16 or 17 years doing it the way we were doing it, and it just - yes, it just needed a bit of time.

I put to you that you had no intention of doing the new timesheets because you saw it as an impost. It was a hassle for you. Is that fair?---Not at all, it wasn't a hassle.

I also put to you that you rarely if ever completed a timesheet, and you didn't want to change this practice?---No, I wanted to do it. It's just like I said, because I've been doing it for so long the same way, it just - because it was different days too, to hand it in. Usually, we were handing in the timesheets on Wednesday. Because she change the pay week and we had to put it on a Monday, so first thing Monday you go to the job, you start the job, and sometimes - most of the time I worked through smoko and then, you know, you just forget, or it was too late.[28]

[71] On this basis the Appellant submits that he held an intention and desire to change and that, whilst resistant to change, ultimately he would have to do so.

[72] The Respondent submits that

• the Commissioner's findings in [72] of the Decision were not the sole basis on which the Commissioner reached his conclusion as to anticipated period of employment and that, in any event, there is an evidentiary basis for the Commissioner's conclusion;

• in submitting that certain propositions were not put to the Appellant, the Appellant contradicts this by relying on the evidence in cross examination (above);

• the Commissioner was not obliged to accept the Appellant's evidence that he might change in the future. The Commissioner's rejection of that evidence is consistent with his earlier finding that the Appellant was not "an especially compelling witness".[29]

[73] The Respondent says that the employment of the Appellant would only have continued for 1 week. A finding that the Appellant's employment would have continued for 4 to 6 weeks is inconsistent with the Commissioner's finding that the Appellant had "no intention" of submitting timesheets in the future[30] and that he was likely to breach a warning if given.[31] Rather, the Commissioner's findings suggests that the Appellant's employment would only have continued until the next time a timesheet was due such that the anticipated period of employment should be 1 week.

[74] We do not consider that the Commissioner fell into error in reaching his conclusion as to the anticipated period of employment.

[75] The Commissioner had the benefit of observing and hearing first-hand the Appellant give evidence. The Commissioner concluded that the Appellant (and Ms Thomson) was not an "especially compelling witness". He found that the Appellant "did not want to accept" that he had been instructed to complete timesheets and "continued to present the view" that it was alright for an office worker to complete timesheets on his behalf. Most tellingly the Commissioner found that the Appellant had "no insight as to his unacceptable or provocative conduct". Further, the Commissioner found that "much of [the Appellant's] evidence "sought to justify how he was the victim" which the Commissioner found "simply unbelievable."[32] Having made such findings as to the Appellant the Commissioner was not in error to then take these into account in determining the anticipated period of employment of the Appellant.

[76] The Appellant does not challenge these findings of the Commissioner which we consider lay a sound foundation on which the Commissioner could draw the conclusions he did in relation to whether the Appellant would abide by the instruction to complete timesheets in the future.

[77] The decision of the Commissioner as to the anticipated period of employment was a discretionary decision and a conclusion, on the evidence, that he was entitled to draw. We see no error in his finding that the Appellant would only have remained in employment for a further 6 weeks, much less a significant error.

[78] Having found no error in the reasoning of the Commissioner we do not need to consider the submissions of the Respondent as to the anticipated period of employment, such submissions being predicated on error being found such that the matter should be reconsidered.

[79] In the circumstances where we are satisfied that the Commissioner incorrectly reduced the amount of compensation otherwise due to the Appellant by virtue of the monies he received from Incolink we have decided to reconsider the question of compensation.

[80] There being no other error identified in the decision, we adopt and accept the conclusions reached by the Commissioner in relation to those factors in s.392(2) of the FW Act save the deduction made for the Incolink payments.

[81] The Appellant's employment was terminated on 11 May 2021. We are satisfied that, had his employment not been terminated he would have remained employed for a further period of 6 weeks - that is, until 22 June 2021. We are satisfied that, until 22 June 2021 the Appellant did not receive remuneration from employment or other work. Earnings of the Appellant after November 2021[33] are therefore not relevant to our calculation of compensation.

[82] Utilising the calculation undertaken by the Commissioner at [99] of the decision we find as follows:

1. Estimate the amount the employee would have received or would have been likely to receive if the employment had not been terminated;

6 weeks projected lost income at the rate of $1,626 per week

Employer superannuation contribution - flat rate of $215 per week

[83] We therefore determine that:

• Permission to appeal is granted;

• The appeal upheld with respect to the deduction of Incolink payment;

• The decision is quashed to the extent it deals with the treatment of the Incolink payment and in the final determination of compensation;

• The order with respect to compensation is quashed;

• The appeal is otherwise dismissed.

[84] We order that the Appellant be paid an amount of compensation of $9,390.00 taxed according to law. We further order that the amount be paid within 14 days of the date of this decision.

Mr C Dowling SC and Mr B Bromberg of Counsel for the Appellant

[1] Saki Elefantis v The Trustee for Timber Ridge Unit Trust [2021] FWC 5303.

[8] See Sprigg v Paul's Licensed Festival Supermarket [1998] AIRC 989; (1998) 88 IR 21 (Sprigg).

[9] Decision at [83]. It should be noted that this is an abbreviated form of the steps set out in Sprigg.

[10] McLean v Transfield [2013] FWC 2573, [143] and Rankine v Pileworx [2020] FWC 6406, [85].

[11] ERGT Australia Pty Ltd v Kevin Govender [2021] FWCFB 5389.

[12] [2009] VSC 176.

[14] Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission and Others [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[15] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 207 IR 177 at [43].

[16] O'Sullivan v Farrer and Another [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 per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ at [69]; Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 207 IR 177 at [44]- [46].

[17] [2010] FWAFB 5343; (2010) 197 IR 266 at [27].

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

[19] GlaxoSmithKline Australia Pty Ltd v Makin 197 IR 266 at [26]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth , 202 IR 388 at [28], affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 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].

[20] Exhibit A - witness statement of Emma Barnes-Whelan.

[21] Exhibit A - witness statement of Emma Barnes-Whelan, annexure EBW-2.

[22] Ellawala v Australian Postal Corporation [2000] AIRC 1151.

[23] Papadopolous v MC Labour Hire Services Pty Ltd (Ruling No 2) [2009] VSC 1276.

[24] Timber Ridge Unit Trust (The Trustee for) T/As AUSCUT and the CFMEU (Victorian Construction and General Division) Concrete Sawing and Drilling Enterprise Agreement 2016-2018, Clause 2 Definitions.

[25] Mullany v Active Concrete (1995) 62 IR 237 at p.376 as cited in ERGT v Govender [2021] FWCFB 5389 at [45].

[27] Transcript of proceeding before Commissioner Wilson dates 31 August 2021 at PN174-176.

[28] Written submissions of the Appellant on appeal dated 28 January 2022 at paragraph 75.

[29] Written submissions of the Respondent on appeal dated 25 February 2022 at paragraphs 37-39.

[33] Witness statement of Ms Barnes-Whelan.

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