[1] Ms Grace Wong was employed as the Club Manager by Nytro Pty Ltd trading as Nitro Gym (Nitro) in Kilsyth, Victoria on a permanent part-time basis on 10 October 2010. She was dismissed on 22 July 2011. Ms Wong seeks relief under s.394 of the Fair Work Act 2009 (the Act) and argues that her termination was harsh unjust and unreasonable.

[2] Ms Wong states that she was advised that she was redundant but that there had been no consultation in accordance with the Fitness Industry Award 2010 [MA000094] (the award). Subsequent to the termination, Ms Wong states that she was advised that her termination was as a result of misconduct.

[3] In Nitro's written response to the application it stated that Ms Wong had been dismissed for serious misconduct. It was stated that Nitro suspected that Ms Wong had altered group certificates; had not improved her performance notwithstanding two written warnings, and was making mistakes and costing the company money. In addition, Nitro stated in its material that the person who it was said made Ms Wong redundant had no professional involvement with the Company from 11 November 2010 and was not able to make the decision on behalf of the Company.

[4] As a result of a misunderstanding by Ms Wong, Nitro was excused from attending the hearing when the matter was first called on. Ms Wong attended, gave evidence and made submissions. The transcript was forwarded to Nitro and another date was set aside to permit Ms Wong to be cross-examined on her evidence and toprovide the opportunity for Nitro to present any evidence and submissions in support of its case.

[5] Nitro filed additional information but did not attend the hearing to support any of its contentions or submissions. Ms Wong attended the hearing and made submissions.

[6] Given that Nitro elected not to attend the hearing I have considered the oral and written evidence given by Ms Wong and I accept her evidence.

[7] Ms Wong's evidence was accompanied by statutory declarations from two previous employees of Nitro. As a result of Ms Wong's uncontested evidence it is not necessary for me to consider the statutory declarations which were submitted to provide supporting evidence for Ms Wong's version of events.

[8] To begin, I find that Ms Wong is a person protected from unfair dismissal in that she had completed the minimum period of employment and that a modern award covered her employment.

[9] I turn now to the reason given to Ms Wong that she was redundant. I accept that Ms Wong was not consulted in accordance with the award and therefore the termination of employment does not constitute a genuine redundancy in accordance with s.389 of the Act. The next allegation of misconduct was, on the evidence of Ms Wong, not made until after the termination had taken place and only in the material submitted to Fair Work Australia. I accept that Ms Wong was not advised of the alleged misconduct at the time of her termination. This is a small business but nothing has been put which would enliven the operation of s.388 of the Act.

[10] In relation to the criteria in s. 387, I find that:

1. There was no valid reason to terminate the employment of Ms Wong.

2. Ms Wong was notified originally that she had been made redundant but this lacked supporting substance.

3. Ms Wong was not advised that her termination was as a result of misconduct.

4. Ms Wong was not given an opportunity to respond to any reason related to capacity or performance if indeed that was the reason.

5. Ms Wong was not advised of any performance related issues.

[11] I have reflected on these matters when considering the harshness or otherwise of the decision and the impact upon Ms Wong in trying to balance her work and family commitments. Ms Wong incurred additional child care costs as a consequence of the demands placed upon her in her new employment.

[12] Section 387(d) and (f) do not require further consideration.

[13] It follows that I find that Ms Wong's employment was terminated harshly unjustly and unreasonably. I now turn to remedy.

[14] To begin, I am satisfied that reinstatement is inappropriate. The circumstances surrounding the termination and the size of the business, together with the employer deciding not to attend the proceedings makes reinstatement inappropriate. It is appropriate that compensation be ordered.

[15] Section 392 provides:

(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), FWA 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 FWA considers relevant.

(3) If FWA is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, FWA must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

(4) The amount ordered by FWA to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

(5) The amount ordered by FWA to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

Note: subsection 395(5) indexed to $59,050 from 1 July 2011

(6) The amount is the total of the following amounts:

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."

[16] In relation to the matters which must be taken into account I find:

1. There is no material on the effect of the viability of the employers enterprise should an order for compensation be made.

3. Ms Wong assessed her loss of remuneration as $5,525.52. In addition, her loss of superannuation and additional annual leave she assessed at $996.62. Ms Wong also claimed additional child care expenses she incurred in looking for and taking up new employment. She also alleged that Nitro had underpaid her for annual leave and as a consequence annual leave loading.

4. Ms Wong sought and obtained other employment as quickly as she could. She was employed at the time of the hearing.

5. Ms Wong did not earn any money during her period of unemployment.

[17] In the circumstances I have decided to include in an order payment of compensation of the amount actually lost by Ms Wong during her period of unemployment which totals $6,522.14. I have reflected upon s.392(2)(g) of the Act but have reached the conclusion that I will not take into account what is said to be an underpayment of annual leave entitlement. I am prepared to take into account some of the additional child care costs. This is a cost incurred directly as a result of the termination of employment. Ms Wong has estimated the cost over six months to equal $5,976.62. Whilst I understand that the loss of employment which suited her family commitments is important, it is difficult to assess the personal decisions which will be taken and which may impact upon child care costs. It appears to me that working patterns matters are also relevant. Of course this may, in some circumstances, be a two edged sword. In the same way as it may be relevant to consider circumstances where an employee succeeds in obtaining further employment with lesser or greater security and conditions. In these circumstances there needs to be an exercise in judgement to ensure fairness as between the employer and the employee. I shall add to the compensation an amount of child care costs equal to the period of unemployment which is $1,379.22. I do not propose to discount the total amount of compensation for any other reason.

[18] The amount of compensation ordered does not exceed the statutory cap.

[19] An order will issue requiring the payment of compensation to the amount of $7,901.36, within 30 days.

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