When calculating compensation for unfair dismissal, it is appropriate to deduct a sum equivalent to any severance payment which was received together with any payment in lieu of notice, and to order the compensation to be a gross sum with the employer to remit assessable taxation to the Australian Tax Office.
“From the starting point of $56,250.09, I deduct the remuneration/likely income earned of $42,565.90 (which has been adjusted for contingencies). This results in provisional compensation of $13,684.19 gross.
From the provisional compensation of $13,684.19 gross, it is appropriate to make a deduction for the severance payment on the basis that in the hypothetical counter-factual, the severance payment would not have been received. 151 This was a gross amount of $6,923.08.152
Further, NewCold contended that a deduction should also be made for the payment in lieu of notice, consistent with the approach of a Full Bench in Bank of Sydney Ltd v Repici. 153 As with severance, I have also determined that it is appropriate to deduct the notice payment. This was a gross amount of $3,461.54.154
The deduction for severance and notice is represented as follows: from the provisional compensation of $13,684.19, I deduct $6,923.08 severance pay and $3,461.54 notice. This yields a figure of $3,299.57 gross.
In relation to taxation, compensation will be determined as a gross amount and it will be left to the Respondent to deduct any amount of taxation required by law.
While superannuation forms part of remuneration, I have not included it in my calculations because I have no evidence about the superannuation Mr Waitere earned from the work he undertook after he was dismissed from NewCold.
There are no other matters that I consider relevant to take into account in the determination of an amount of compensation in lieu of reinstatement for Mr Waitere, save from those in ss.392(2)(a), (b) and (d), s.392(3) and s.392(5) of the Act, which are addressed below.”
Waitere and others v NewCold Melbourne No. 2 Pty Ltd (2019) FWC 6594 delivered 3 October 2019 per Millhouse DP