Discount for contingencies
It is necessary to consider whether to discount the remaining amount for “contingencies”. This step is a means of taking into account the possibility that the occurrence of contingencies to which the applicant was subject might have brought about some change in earning capacity or earnings. Positive considerations which might have resulted in advancement and increased earnings are also taken into account.
The discount for contingencies should only be applied in respect to an “anticipated period of employment” that is not actually known, that is a period that is prospective to the date of the decision.
In my view, it is appropriate in the circumstances of this case to apply a 60% discount for contingencies. I have had regard to the following factors in assessing the 60% discount rate:
(a) Ms Price is motivated to find full time alternative employment. She has a good history of working full time hours. In my view, there is a reasonably good prospect that, in the period from the date of this decision until 19 July 2017, Ms Price will be able to earn more remuneration from either Openshore Traffic or an alternative employer than an average weekly amount of $376.02 (which I have estimated based on her earnings to date with Openshore Traffic). There is, of course, the prospect that Ms Price could become unemployed, or earn less than $376.02 per week, for some or all of the period prior to 19 July 2017, but in my view that is less likely than the chance of her earning more than an average of $376.02 per week during that period;
(b) Because Ms Price was employed by Fairhill Farm on a casual basis, there is the risk that during the anticipated period of employment she could have been dismissed or given less work than had traditionally been the case during her employment with Fairhill Farm. Although Ms O’Donnell gave evidence, which I accept, that she envisaged Ms Price remaining in employment with Fairhill Farm in the long run, Ms O’Donnell is considering employing a Farm Manager and if such a person is employed, there is the risk that either less work will be available for the casual employees generally or the new Farm Manager may want to employ some new employees;
(c) There is the risk that Ms Price could have suffered a loss of income during the anticipated period of employment with Fairhill Farm by reason of sickness, accident, death, holidays taken by her (for which she would not be paid as a casual employee) or resignation;
(d) There is the possibility that Ms Price could have been employed by Fairhill Farm as the Farm Manager, or in another more senior position, if she had not been dismissed on 19 January 2016. This is a positive consideration which might have resulted in increased earnings for Ms Price during the anticipated period of employment;
(e) Some allowance should be made for the fact that the moneys are to be received as a lump sum; and
(f) The anticipated period of employment in this case is reasonably lengthy (ie until 19 July 2017). A long anticipated period of employment justifies a higher percentage discount for contingencies.
Once a 60% deduction rate is applied to the prospective period, the figure for the period from 16 May 2016 until 19 July 2017 becomes $12,428.64 ($31,071.59 x 0.4 = $12,428.64), and the new total is $23,232.47 ($10,803.83 + $12,428.64 = $23,232.47).
I have considered the impact of taxation, but I prefer to determine compensation as a gross amount and leave taxation for determination” (presumably by the ATO).
Price v MJ and DJ O’Donnell T/A Fairhill Farm Partnership (2016) FWC 3243 delivered 27 May 2016 per Saunders C