Steve Varvaris v Wilson Parking Australia 1992 Pty Ltd T/A Wilson Parking

[2012] FWA 8709

[2012] FWA 8709

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steve Varvaris
v
Wilson Parking Australia 1992 Pty Ltd T/A Wilson Parking
(U2012/7787)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 12 OCTOBER 2012

Remedy - Compensation

Introduction

[1] On 14 September 2012 I handed down a decision 1 in which I found that the termination of Mr.Varvaris’s employment by Wilson Parking Australia on 4 May 2012 was harsh, unjust or unreasonable. I further decided pursuant to ss.390-392 that reinstatement was not appropriate and that compensation was an appropriate remedy. I directed that the parties endeavour to settle the remedy by discussions, and that further submissions be filed on the issue of remedy if they were not able to settle the issue. I decided that the remedy would be determined on the basis of those further submissions and submissions already filed. The parties were not able to settle the matter, and submissions were filed in accordance with directions.

The Act

[2] Sections 390-393 provide:

‘390 When FWA may order remedy for unfair dismissal

(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) FWA may make the order only if the person has made an application under section 394.

(3) FWA must not order the payment of compensation to the person unless:

(a) FWA is satisfied that reinstatement of the person is inappropriate; and

(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

391 Remedy—reinstatement etc.

Reinstatement

(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.

(1A) If:

(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and

(b) that position, or an equivalent position, is a position with an associated entity of the employer;

the order under subsection (1) may be an order to the associated entity to:

(c) appoint the person to the position in which the person was employed immediately before the dismissal; or

(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.

Order to maintain continuity

(2) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA considers appropriate to maintain the following:

(a) the continuity of the person’s employment;

(b) the period of the person’s continuous service with the employer, or (if subsection (1A) applies) the associated entity.

Order to restore lost pay

(3) If FWA makes an order under subsection (1) and considers it appropriate to do so, FWA may also make any order that FWA 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), FWA 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.

392 Remedy—compensation

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.

Criteria for deciding amounts

(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.

Misconduct reduces amount

(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.

Shock, distress etc. disregarded

(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.

Compensation cap

(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 $61,650 from 1 July 2012

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

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(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.

393 Monetary orders may be in instalments

To avoid doubt, an order by FWA under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.’

Decision

[3] I have followed the approach to compensation taken by a Full Bench in Enhance Systems Pty Ltd v Cox 2, and another Full Bench in Tabro Meat Pty Ltd v. Heffernan3, which had regard to the specific terms of the current Act.

Section 390 - Compensation Appropriate

[4] I conclude that Mr.Varvaris is a person protected from unfair dismissal at the time of being dismissed, that he was unfairly dismissed, and that he has made an application under s.394. In my view an order of compensation is appropriate in all the circumstances of the case.

Section 392 Remedy - Compensation Order

[5] I note that an order for the payment of compensation in this matter is an order for payment of compensation in lieu of reinstatement.

Section 392(2)(a) - Viability of the Enterprise

[6] It is agreed that the compensation order will have no effect on the viability of the employer’s enterprise 4.

Section 392(2)(b) - Length of Service with the Employer

[7] It is agreed that Mr.Varvaris was employed by Wilsons Parking for three years and eight months.

Section 392(2)(c) - Remuneration that Mr.Varvaris would have received, or would have been likely to have received if he had not been dismissed

[8] The parties are in disagreement about the earnings that would have been earnt by Mr.Varvaris but for his unfair dismissal 5. In my view he would have been employed for a further 6 months, and would therefore have earned that amount in salary.

Section 392(2)(d) - Mr.Varvaris’s efforts to mitigate his loss

[9] Mr.Varvaris submitted that he has a previous history in online trade of music products, and that he had been seeking employment within the music industry 6. Wilsons Parking submits, based on the applicant’s material, that Mr.Varvaris’s applications for employment mainly related to the music industry. They submitted that he had an interest in music, but has as far as they are able to ascertain had never been employed in the industry. Having regard to his employment he was seeking a change in employment stream, it was not reasonable for the employer to subsidise this, and this was a relevant matter7. In my view there is some degree of narrowness in scope of the search for employment, and a limited deduction should be made for that.

Section 392(2)(e) - Amount of Remuneration Earned

[10] In this case the employee has not earned any income since his dismissal.

Section 392(2)(f) - Amount of any income reasonably likely to be earned between making of order for compensation and the actual compensation

[11] On the submissions put I find that it is unlikely that the applicant will earn any income in this period.

Section 392(2)(g) - Any other matter

[12] The employer submits that having regard to employee submissions the upper amount is $18,307.00.

Section 392(3) - Misconduct

[13] I made no findings of misconduct and it is accepted by both sides that no reduction on account of misconduct should be made.

Section 392(4) - Shock, Distress, Humiliation

[14] I will not order a component by way of compensation for shock, distress, humiliation, or other analogous hurt.

Section 392(5) and (6) - Compensation Cap

[15] The employer submits that this limits the amount that can be ordered as compensation to $33,999.68, or 26 weeks at the rate of $1,307.68 per week.

Conclusion

[16] Having regard to all the circumstances I have decided to order an amount of compensation based on the $18,307.69 of financial loss, with a small deduction having regard to the limits placed by the employee on his efforts to mitigate his loss. I will order that an amount of $17,307.69 be paid. An order is contained in PR530076.

DEPUTY PRESIDENT

Appearances:

Mr G Pinchen for the applicant.

Mr G Nelson for the respondent.

Hearing details:

2012

Melbourne

6 September

Final written submissions:

2012

27 September

 1   [2012] FWA 7909

 2   PR910779

 3   [2011] FWFB 1080, 16 March 2011

 4   Employer Submission on Remedy, paragraph 10

 5   Employer Submission on Remedy, paragraph 12; Employee Submission on Remedy, paragraphs 14-17

 6   Employee Submission on Remedy, paragraphs 18-48

 7   Employer Submission on Remedy, paragraphs13-25

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