“Compensation
[31] Reinstatement is not an appropriate remedy in this case because MSY CDC is not
currently trading. Compensation is the appropriate remedy for both Mr Yuen and Ms Jor.
[32] Section 392(2) of the Act deals with how compensation is to be assessed in connection
with an unfair dismissal. The established methodology is elaborated on in Bowden v Ottrey
Homes Cobram and District Retirement Villages Inc.
3
[2023] FWC 872
6
Viability (s.392(2)(a))
[33] There is no evidence that an order for compensation will materially affect the viability
of MSY CDC. While it has ceased trading, MSY CDC appears to have access to funds to pay
at least the employment entitlements of Mr Yuen and Ms Jor. No reduction in the amount of
compensation is made because of any effect on the viability of MSY CDC.
Remuneration Mr Yuen and Ms Jor would have received, or would have been likely to receive,
if they had not been dismissed (s.392(2)(c))
[34] It is unlikely that Mr Yuen and Ms Jor would have remained in employment with MSY
CDC for any longer than they did, as their dismissals coincided with the transfer of business
from MSY CDC to Umart. The only additional remuneration they would have received but for
their dismissals was payment instead of notice of termination. While Mr Yuen is separately
entitled to redundancy pay, that is beyond the scope of this decision. Ms Jor has no entitlement
to redundancy pay because her period of employment was less than 12 months.
[35] Mr Yuen’s fortnightly pay was $1,857.00 gross. Ms Jor’s fortnightly pay was $1,753.50
gross. I find that Mr Yuen would have earned $3,077.97 gross (the equivalent of 3 week’s pay
plus superannuation) had he not been dismissed without notice. Ms Jor would have earned
$968.81 gross (the equivalent of 1 week’s pay plus superannuation).
Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f))
[36] Mr Yuen and Ms Jor have not earned any remuneration in the period since dismissal.
Length of service (s.392(2)(b))
[37] Mr Yuen’s period of service was more than 3 years, while Ms Jor’s period of service
was slightly less than one year. No adjustment is made in relation to the assessment of
compensation on this account.
Mitigation efforts (s.392(2)(d))
[38] Mr Yuen and Ms Jor were both offered alternative employment with Umart, on terms
and conditions that were substantially similar to their terms and conditions of employment with
MSY CDC. I accept that in some respects the proposed terms and conditions of employment
were less beneficial and this is why Mr Yuen and Ms Jor decided not to accept the offers. I do
not accept the evidence of Mr Yiap that casual employment was also offered to Mr Yuen and
Ms Jor by Umart, as the evidence is hearsay and is denied by Mr Yuen and Ms Jor.
[39] Since the dismissal, Mr Yuen and Ms Jor have applied for 3-4 jobs without success. Mr
Yuen has undertaken a short course of study in computer skills to improve his chances of
finding another job. In the meantime, they are relying on their savings. On balance, no
adjustment of the compensation amount will be made on this account.
Other matters (s.392(2)(g))
[2023] FWC 872
7
[40] No adjustment of the amount of compensation is made for contingencies because of the
known period since dismissal and the likelihood that little will change in the circumstances of
Mr Yuen and Ms Jor between the date of hearing and decision.
Misconduct (s.392(3))
[41] There is no evidence that misconduct was a contributing factor to the dismissal. No
reduction in the amount of compensation is appropriate under section 392 of the Act.
Shock, Distress (s.392(4))
[42] The amount of compensation does not include a component for shock, humiliation or
distress.
Compensation cap (s.392(5)&(6))
[43] The amounts of $3,077.97 gross and $968.81 gross are less than the compensation cap
of 26 weeks’ pay in each case. No further adjustment of the amount is necessary.
Instalments (s.393)
[44] No application was made by MSY CDC to pay any compensation awarded by
instalments, and no such order will be made.
Conclusion on remedy
[45] In my view, the compensation amounts of $3,077.97 gross for Mr Yuen and $968.81
gross for Ms Jor are neither excessive nor inadequate in the circumstances of this case.
[46] For the reasons set out above, I am satisfied that a remedy of compensation in the
respective amounts of $3,077.97 gross and $968.81 gross is appropriate in the circumstances of
these cases. Orders [PR761056] and [PR761057] will issue to that effect.
COMMISSIONER
Appearances:
K Yuen and P Jor on their own behalf.
S Yiap for the respondent.
Hearing details:
2023.
Sydney (by video):
April 11.
[2023] FWC 872
8
Printed by authority of the Commonwealth Government Printer