Remedies for unfair dismissal; continuity of service

When an employee wins an unfair dismissal case, the remedies which can be ordered by the Fair Work Commission are reinstatement together with an order for the maintenance of continuity of service, together with compensation for economic loss including for lost earnings between the dismissal and reinstatement. Here are some principles which apply to calculating the latter.

“The Commission has carefully considered the competing submissions made by the Parties. The Commission has taken into account the amount of any remuneration earned by the applicant from employment or other work during the period between her dismissal, 2 August 2018, and the making of the Orders for reinstatement, 7 March 2019. Further, the Commission has taken into account the amount of any remuneration reasonably likely to be earned by the applicant during the period between the making of the Order for reinstatement and the actual reinstatement.

In broad terms, the Commission is not prepared to adopt either of the Parties respective methods for calculation of Order 3, the Order to restore lost pay. In particular, the Commission rejects deductions made by Ryan Wilks in respect to amounts received by the applicant in the form of Newstart allowance and income protection insurance payments. Further, the Commission rejects the applicant’s proposition that the calculation should include an adjustment for a 3% CPI increase.

In the absence of agreement between the Parties, the Commission determines that the amount to be paid to the applicant in accordance with Order 3, the Order to restore lost pay shall be $17,758.00. This amount is to be paid in addition to all other amounts that the applicant has received from Ryan Wilks including the $3,314.00 that was paid to the applicant in November 2019.

The figure of $17,758.00 has been derived by notionally accepting the gross salary figure for the period 2 August 2018 to 7 March 2019 to be $36,704.00, from which the “Gross payments–individual” figure contained in the applicant’s ATO income statement of $18,946.00 has been subtracted. No further deduction in respect to the $3,314.00 paid in November 2019 has been made as this amount has been considered to reflect further remuneration lost or likely to have been lost because of the dismissal, and encompassing the entire period from dismissal on 2 August 2018 until resignation on 16 July 2019.

The amount of $17,758.00 is a gross figure which shall be taxed according to law, and it shall similarly attract superannuation treatment according to law. The amount of $17,758.00 less applicable tax is to be paid to the applicant within seven days of the date of the Order.

An Order specifying the amount to be paid in accordance with Order 3, the Order to restore lost pay, shall be issued separately.”

See Puszka v Ryan Wilks Pty Ltd T/A Ryan Wilks Proprietary Limited (2020) FWC 1067 delivered  28 February 2020 per Cambridge C