Show cause letters in the fair work system

This section of a recent unfair dismissal decision by the Fair Wok Commission is a good summary of the Fair Work Commission’s views about the care employers should take in the use of show cause letters and their potential impact upon a subsequent unfair dismissal claim.

“s.387(a) – Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[88] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.”

[89] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.8

[90] It appears to me that the Respondent’s actions in issuing to Mrs Rezaeifard a show cause letter on 17 July 2020 was in retaliation for the dispute that had arisen between Mrs Rezaeifard and Ms Wheeler the week prior. It is entirely inappropriate to issue a show cause letter to an employee in the way the Respondent has done so in this matter. The steps typically taken are these:

(a) Collate allegations;

(b) Put allegations to the employee, typically with enough information for the employee to understand the specificity of the allegation (time, date, who etc.);

(c) Allow the employee an opportunity to respond to the allegations;

(d) The employer to consider the response and then make appropriate findings or determine if further investigations are required to enable the employer to make appropriate findings;

(e) The findings should be made clear to the employee – which allegations are substantiated or not substantiated.

[91] In deciding to issue a show cause letter to an employee after some or all allegations are substantiated, an employer should also invite the employee to put forward any mitigation regarding the employer’s findings. The letter from Ms Macken on 17 July 2020 clearly jumped the gun and should never have been identified as a show cause letter; it should have simply contained the allegations and required Mrs Rezaeifard to provide a response.

[92] Mrs Rezaeifard provided very detailed rebuttals of the allegations put to her, and without further ado, curiously, all of the allegations were abandoned by 30 July 2020. I asked Ms Auer-Hernandez during the determinative conference if this meant that because Mrs Rezaeifard’s response was accepted, some of the accusers might be lying, to which she responded, “Potentially.”

[93] It is an extraordinary thing to have occurred; for the Respondent to have completely abandoned the inquiry, noting that there were 16 allegations made against Mrs Rezaeifard.

[94] Given the way the matter was dealt with, and so soon following the dispute between Mrs Rezaeifard and Ms Wheeler, I consider the issuing of the letter to Mrs Rezaeifard was spiteful and vindictive.

[95] Turning to the events of September 2020, I accept that Mrs Rezaeifard complained to Ms Wheeler that she was experiencing pain when spending time in the tiny tots’ room, which she said has babies aged from 1.5 years in it. She clearly was not working pain-free, as her evidence demonstrates that she had difficulty lifting children who weigh more than 10kg, including to comfort them or to change their nappy. Her preference was to work in the older children’s room where she would experience less time having to carry them, and it is her evidence the children would be carried less when having their nappy changed as they might be able to approach the change table from a set of stairs.

[96] I consider Mrs Rezaeifard was extremely naïve when she thought she could obtain a medical certificate from her GP to declare that it would be best if she worked in the older rooms within the centre. Such a certificate necessarily declared that she was not fit to work in the younger children’s room. This instantly flagged a concern to the Respondent where it had not otherwise had a concern.

[97] I was extremely dissatisfied with Mrs Rezaeifard’s evidence relevant to the information she provided to her GP over the telephone during her consultation on 9 September 2020. I will, however, afford to Mrs Rezaeifard the benefit of the doubt regarding her language skills as to whether she told untruths to Dr Azarian in order to obtain the medical certificate. In any event, the issue backfired for Mrs Rezaeifard because having produced to the Respondent a medical certificate citing chronic lower back pain which has become worse in the past year, it became necessary for the Respondent to require Mrs Rezaeifard to be independently medically examined. It could not simply ignore the information it had before it and allow Mrs Rezaeifard to only work in the 3-5 year room. It would be unsafe to do so.

[98] Having reviewed the functional assessment completed by Mr Mansell, it is clear that Mrs Rezaeifard’s injury prevents her from safely working with young children as she is severely limited in her ability to lift and carry the children. During the assessment she was not able to lift a weight in excess of 10kg, and Mr Mansell reported a suboptimal effort made by her.

[99] Children can weigh as much as 10kg from less than one year of age. Clearly, there will also be occasions when children aged 3-5 will require some assistance, and perhaps to be carried by the adult responsible for them. The children, their parents, the Respondent and other employees of the Respondent are entitled to expect that the educator will be able to deal with all of the circumstances that arise in the caring of the child, including, being lifted, where necessary.

[100] I accept implicitly that the functional assessment conducted on Mrs Rezaeifard demonstrated that Mrs Rezaeifard was unable to safely perform the inherent requirements of the role. She discussed the pain that she experienced when lifting children. I am satisfied that it was necessary and appropriate, on the information available to the Respondent at the time, to refrain Mrs Rezaeifard from caring for the children at the centre as it would be far too great a risk to the health and safety of the children in her care, and would likely create a risk of injury to Mrs Rezaeifard.

[101] Where Mrs Rezaeifard places great reliance on the CT scan performed on her on 25 September 2020, following the dismissal, clearly it is simply a scan. Mrs Rezaeifard was not asked to complete a functional assessment, and if she was unable to lift in excess of 10kg on 9 September 2020, she would have been unable to lift that weight on 25 September 2020.

[102] I am comfortable that the Respondent’s next steps included an appropriate consultation with Mrs Rezaeifard, relevant to any other roles she could perform. Regrettably, Mrs Rezaeifard has not properly understood Ms Wheeler’s email dated 15 September 2020 where Ms Wheeler essentially said that with the limitations now known to the Respondent, the only task she could safely perform is sitting on the floor or on a chair with the children. Ms Wheeler was informing Ms Auer-Hernandez that all room educators are required to lift, twist, carry and squat; things Mrs Rezaeifard was declared not fit to do.

[103] The email from Ms Auer-Hernandez dated 15 September 2020 made it clear that there were severe restrictions on Mrs Rezaeifard, and invited Mrs Rezaeifard to respond by close of business that day. It is not clear what was discussed on 16 September 2020.

[104] It would appear that Mrs Rezaeifard had exhausted paid personal leave shortly after receiving the medical certificate dated 9 September 2020. I understand she did not have available to her a substantial amount of annual leave. Accordingly, if the Respondent had proper regard for the requirements of the Act, Mrs Rezaeifard would have been required to go on unpaid personal leave. Instead, she was dismissed. She was informed the reason was because she could not perform the inherent requirements of the role.

[105] Sections 352 and 772 of the Act prohibit an employer from dismissing an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. Section 352 is the relevant section governing Mrs Rezaeifard’s termination as she was employed by a constitutional corporation. Regulation 3.01 is the relevant regulation and is reproduced below:

“3.01 Temporary absence—illness or injury

(1) For section 352 of the Act, this regulation prescribes kinds of illness or injury.

Note: Under section 352 of the Act, an employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations.

(2) A prescribed kind of illness or injury exists if the employee provides a medical certificate for the illness or injury, or a statutory declaration about the illness or injury, within:

(a) 24 hours after the commencement of the absence; or

(b) such longer period as is reasonable in the circumstances.

Note: The Act defines medical certificate in section 12.

(3) A prescribed kind of illness or injury exists if the employee:

(a) is required by the terms of a workplace instrument:

(i) to notify the employer of an absence from work; and

(ii) to substantiate the reason for the absence; and

(b) complies with those terms.

(4) A prescribed kind of illness or injury exists if the employee has provided the employer with evidence, in accordance with paragraph 107(3)(a) of the Act, for taking paid personal/carer’s leave for a personal illness or personal injury, as mentioned in paragraph 97(a) of the Act.

Note: Paragraph 97(a) of the Act provides that an employee may take paid personal/carer’s leave if the leave is taken because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee.

(5) An illness or injury is not a prescribed kind of illness or injury if:

(a) either:

(i) the employee’s absence extends for more than 3 months; or

(ii) the total absences of the employee, within a 12 month period, have been more than 3 months (whether based on a single illness or injury or separate illnesses or injuries); and

(b) the employee is not on paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act for the duration of the absence.

(6) In this regulation, a period of paid personal/carer’s leave (however described) for a purpose mentioned in paragraph 97(a) of the Act does not include a period when the employee is absent from work while receiving compensation under a law of the Commonwealth, a State or a Territory that is about workers’ compensation.”

[106] Mrs Rezaeifard was, as of 18 September 2020, temporarily absent from work because of an injury of a kind prescribed by Regulation 3.01. Parliament has determined that employees must not be dismissed within three months of being on unpaid leave because an employee has a temporary illness or injury. This is entirely fair, as employees will, at various stages of their working life have to take time off work to deal with various illnesses or injuries.

[107] Employees should not lose their job if they have to take six weeks off work to mend a broken bone. Not all employees will have a balance of six weeks of paid personal leave to cover such a scenario. Nor should employees lose their job if they are having surgery such as a hysterectomy, or retina attachment, or are recovering from hepatitis. A three month protection is in place for very good reason.

[108] Disappointingly and disturbingly, the Respondent was not aware of the obligations within the Act not to dismiss an employee on unpaid leave within this important timeframe. It blindly determined that she could not, in mid-September 2020, perform the inherent requirements of the role, or any available role, and therefore must be dismissed.

[109] Whilst it is a matter for a court of competent jurisdiction to determine if there is a breach of s.352 of the Act in the event an employee brings an application under s.365 of the Act, which Mrs Rezaeifard did not do, I do not consider it is available for the Commission to ignore the protections afforded to employees s.352 in determining an unfair dismissal claim. It is not appropriate for the Commission to determine if there has been a breach of s.352, as that is the responsibility of the court.

[110] If the Commission could not have regard to the protection afforded to employees in s.352 unless an applicant made a s.365 application, similarly it could not have regard to the protections afforded to employees in s.351, which deals with ensuring employees are protected from adverse action because of the person’s race, colour, sex and other attributes. Clearly, the Commission does take into consideration in the matters before it if employees have been dismissed on the basis of their race, colour, sex and other attributes.

[111] I am satisfied the Commission may have appropriate regard to the protections afforded to employees in those sections of the Act in determining if there was a valid reason for the dismissal. In my view, having regard for the protections afforded to employees, and determining if there is a breach of the provisions of the Act are two separate matters.

[112] Noting Mrs Rezaeifard’s injury, the Respondent had an obligation to look for alternative roles she could safely perform within its organisation. On the evidence available to the Commission, the Respondent did not undertake a wide evaluation. Only after questions were posed by me to the Respondent during the determinative conference did it satisfy itself that there were no roles Mrs Rezaeifard could safely perform.

[113] Having heard that only a small number of Brisbane centres require a kitchen assistant, and the kitchen assistant is required to lift groceries and the like, I do not consider it would have been safe, in mid-September 2020 for Mrs Rezaeifard to perform a kitchen assistant role. There was no evidence before the Commission as to whether a role was available in any of the larger centres run by the Respondent.

[114] The Respondent was required by law not to dismiss Mrs Rezaeifard due to her injury, within three months of her unpaid leave commencing. Mrs Rezaeifard was a protected employee, and it was incumbent on the Respondent to permit Mrs Rezaeifard time to see if she could recover from her injury. The appropriate process is to inform her that the Respondent has taken the view she cannot safely perform the work and there are no other roles available for her to safely perform, and she is on unpaid personal leave. A prudent employer would regularly be in touch with such an employee, and as the period of three months of unpaid leave drew near, invite the employee in for a discussion to advise that the Respondent was considering dismissing her once the period of unpaid leave had gone beyond three months.

[115] In many conferences I have with parties, I liken the protection at s.352 of the Act to a red light, prohibiting dismissal due to the injury or illness within three months of the period of unpaid leave commencing. It is not then an automatic green light to dismiss once the three months have passed; however, it is no longer a red light. Discussions should occur at around that time so that once the period of three months has passed, and if the employer is determined to dismiss on account of not being able to hold the position for the injured or ill employee, the employee may then have some input into the decision.

[116] Some employers will hold open an injured or ill employee’s role for them well beyond three months of unpaid leave. For example, if an employee is battling cancer, many employers will not count down the period to three months and then terminate the employment once the protected period has been reached. Employees may be in a position to inform their employer that their treatment or prognosis is good, and they may just need a further, short period of time to recover and return to pre-injury or pre-illness duties. Again, reaching the period of three months is not an automatic right to dismiss; it is simply no longer a prohibition.

[117] On 29 October 2020, the Respondent emailed Mrs Rezaeifard at [36], after she had sought reinstatement, to inform her that it was comfortable with its decision to dismiss her. Consultation had been sought with Ms Berry and Mr McDonald-Smith. This is the very reason why Mrs Rezaeifard’s employment should have been live at that time. Mr McDonald-Smith should have been informed of the protection afforded to injured or ill employees; they are not to be shown the door the very minute they become unavailable to safely perform work. The Act prohibits it. Some employees will recover from their illness or injury and decisions must only be made once the three month protection period has expired.

[118] Having determined that the Respondent failed to have any regard to s.352 of the Act and the protection afforded to Mrs Rezaeifard, I am not satisfied there was a valid reason for the dismissal as of 18 September 2020.

s.387(b) – Notification of the valid reason

[119] I am satisfied Mrs Rezaeifard was informed that the Respondent considered she could not perform the inherent requirements of the role due to her incapacity.

s.387(c) – Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[120] Mrs Rezaeifard was not informed in the email of 15 September 2020 she was at risk of having her employment terminated. Whilst she was informed the Respondent considered she could not safely perform her role and she was then not permitted to attend for work and was on unpaid personal leave, it was not made clear to her that the Respondent was considering dismissing her on account of her incapacity.

s.387(d) – Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[121] Without evidence of the discussion held on 16 September 2020, it is unclear if Mrs Rezaeifard requested a support person and was prevent from having a support person present. Mrs Rezaeifard did not suggest so when she gave evidence.

s.387(e) – Was there a warning of unsatisfactory work performance before dismissal

[122] Mrs Rezaeifard was not dismissed for unsatisfactory work performance; she was dismissed on account of her incapacity to perform the inherent requirements of the role. Accordingly, this criterion is not a relevant consideration.

[123] I have, however, had things to say in my earlier consideration relevant to the way Mrs Rezaeifard was treated with a long list of allegations based on her alleged conduct which was then all essentially withdrawn.

s.387(f) – Whether the employer’s size impacted on the procedures followed and s.387(g) – Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

[124] The Respondent is a large organisation with a dedicated human resource management specialist. The consideration within the Act is whether there was an absence of a dedicated human resource specialist, and it is implied that a smaller organisation might not be in a position to properly inform itself of the necessary procedures to follow than a larger organisation. The consideration is not whether the dedicated human resource management specialist handled the matter poorly or gave incorrect advice.

[125] Whilst it is not a consideration in this criterion, I will say that the Respondent’s failure to properly inform itself of its obligations is disappointing and disturbing given the size of the Respondent and the resources it has available to it.

s.387(h) – Other matters

[126] At the determinative conference it became clear that Ms Auer-Hernandez harboured some ill-feeling towards Mrs Rezaeifard on account of Mrs Rezaeifard’s failure to declare to the Respondent her diagnosis of lumbar lordosis which she was aware of since 2010. On commencing employment, Mrs Rezaeifard declared that she had no conditions at all. It appears, however, that this resentment Ms Auer-Hernandez experienced towards Mrs Rezaeifard did not form part of the reason for the dismissal.

[127] During the determinative conference it became clear that here had been some miscommunication between Mrs Rezaeifard and Mr Mansell during the functional assessment. The functional assessment informed the Respondent, and namely Ms Auer-Hernandez that Mrs Rezaeifard had experienced this condition since birth. In fact, she had experienced the condition since 2010, from her first pregnancy. Still, Mrs Rezaeifard did not declare this condition on her self-assessment medical when she completed it in August 2019. I appreciate the Respondent might then have made further inquiries as to whether she was fit to carry children and do the other strenuous activities required of an early childhood educator.

[128] If discussions had continued at the initiative of the Respondent in September 2020, these are matters that could have been discussed. They were not, on account of the brisk act to terminate Mrs Rezaeifard’s employment.

[129] Mrs Rezaeifard also places great reliance on a medical report provided in February 2021. With all respect to Dr Albietz, Spinal Surgeon, the report declares Mrs Rezaeifard’s statements, and a functional assessment was not conducted at this time, determining all of the duties Mrs Rezaeifard could safely perform at that time. Dr Albeitz was not provided with all of the information required to declare if Mrs Rezaeifard could safely perform the work of a childcare educator.

[130] I do not consider the report of February 2021 is helpful to counter the functional assessment performed in September 2020. I do, however, consider it would have been important, if Mrs Rezaeifard informed the Respondent her condition had improved over October, November and December 2020, for a further functional assessment to have been undertaken and her condition as at late December 2020 or early January 2021 determined, prior to any decision to terminate her employment.

[131] Mrs Rezaeifard had just over one year’s service with the Respondent. It is not a long period of time.

Conclusion

[132] I have determined that there was not a valid reason for the dismissal.

[133] I consider that Mrs Rezaeifard was informed of the reason for the dismissal.

[134] I am not satisfied Mrs Rezaeifard was given an opportunity to respond to any reason related to her capacity with any knowledge that termination of her employment was being considered.

[135] There was no unreasonable refusal by the Respondent to allow Mrs Rezaeifard a support person because no meeting occurred.

[136] The reason for the dismissal was capacity, not performance.

[137] The Respondent is not small and there is no absence of a dedicated human resource management specialist which impacted on the procedures followed.

[138] I have had regard to the other matters I consider are appropriate to take into consideration. While I have weighed-up Mrs Rezaeifard’s failure to inform the Respondent of her pre-existing injury when she commenced employment, I do not consider the Respondent would have been prejudiced by this fact if, upon learning of the injury, it did what it was required to do when it became aware of her injury – place her on unpaid personal leave.

[139] I determine that Mrs Rezaeifard’s dismissal was harsh, unjust and unreasonable.

Remedy

[140] Section 390 of the Act reads as follows:

“390 When the FWC may order remedy for unfair dismissal

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

(a) the FWC 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) The FWC may make the order only if the person has made an application under section 394.

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

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

(b) the FWC 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.”

[141] Mrs Rezaeifard is a person protected from unfair dismissal for the Act’s purposes and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether she can be reinstated.

[142] Having regard to the requirements of the role and Mrs Rezaeifard’s ongoing medical condition, which is not cured by the provision of the CT scan in September 2020, nor the specialist’s medical examination in February 2021 (which did not involve a functional assessment), I am satisfied it is inappropriate to order reinstatement as Mrs Rezaeifard presents as an ongoing risk in the type of employment she would be required to perform. There is no current medical evidence to support Mrs Rezaeifard being able to safely lift in excess of 10kg. The wellbeing of young children is paramount, and I am satisfied with the information I have before me, Mrs Rezaeifard could not safely care for the children within the Respondent’s centre.

[143] I now turn to consideration of compensation.

Compensation

[144] Section 392 of the Act provides:

“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), the FWC 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 the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC 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 the FWC 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 the FWC 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.

(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.”

Authorities

[145] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.9 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey;10 Jetstar Airways Pty Ltd v Neeteson-Lemkes11 and McCulloch v Calvary Health Care (McCulloch).12

[146] I have had regard to the above authorities, and I have considered the submission of each party.

The effect of the order on the viability of the respondent

[147] The Respondent is a large organisation and I am satisfied there would be no effect of the order on the viability of the Respondent.

The length of Mrs Rezaeifard’s service

[148] Mrs Rezaeifard had just over one year’s service with the Respondent. This is not an extensive period of time.

The remuneration that Mrs Rezaeifard would have received, or would have been likely to receive, if she had not been dismissed

[149] I have determined that Mrs Rezaeifard would have remained employed for at least a period of 13 weeks until the protection afforded to her by the Act was extinguished, and appropriate discussions could have occurred to consider termination. Up-to-date medical evidence would have been available at that time, from mid-December 2020.

[150] It is noted that during this period, Mrs Rezaeifard would have not been receiving any remuneration from the Respondent on account of being on unpaid personal leave. No other entitlements would accrue during this time.

[151] This is a matter I raised repeatedly with Mrs Rezaeifard during the determinative conference, yet Mrs Rezaeifard failed to have any discernible regard to the consideration the Commission must have at s.392(2)(c).

The efforts of Mrs Rezaeifard (if any) to mitigate the loss suffered because of the dismissal

[152] I am satisfied Mrs Rezaeifard made appropriate attempts to mitigate her loss and look for suitable employment. The Respondent’s criticism of her efforts is, in my view, ill-informed.

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

[153] Mrs Rezaeifard commenced employment in another role in late January 2021. Further, Mrs Rezaeifard was in receipt of JobKeeper payments of $750 per week up until 27 September 2020 pursuant to her other employment she had through her husband’s business. This payment is appropriate to regard as remuneration, however I do not consider it appropriate to discount any compensation payable by the Respondent as Mrs Rezaeifard was in receipt of JobKeeper payments from late March 2020 until 27 September 2020, and I do not consider s.392(2)(e) contemplates a deduction from other efforts she had due to existing employment. To do so would mean that an employee unfairly dismissed would never be able to recover a complete week’s wages from the role from which they were dismissed on account of earnings in a secondary job.

The amount of any income reasonably likely to be so earned by Mrs Rezaeifard during the period between the making of the order for compensation and the actual compensation

[154] This factor is not relevant in the circumstances of this matter.

Other relevant matters

[155] While it is the case that Mrs Rezaeifard would not have earned remuneration through the Respondent for the expected thirteen-week period she would have continued to have been employed, I consider it is appropriate to ensure that the Respondent, and any other employer who might consider it suitable to dismiss an employee upon them being unable to perform work on account of illness or injury, does not leap to dismissal. The Respondent had no regard for the protections afforded to Mrs Rezaeifard. Although I have had regard to the fact that Mrs Rezaeifard would have been on unpaid personal leave, I do not consider it appropriate to reward the Respondent’s dismissal of her by not making any award of compensation.

[156] In my view, not making any award of compensation would potentially invite the Respondent to, in future, have similar disregard for the protections afforded to employees in the Act. Employees suffering a short-term illness or injury are often at their most vulnerable; they may be on unpaid leave and unable to obtain welfare payments on account of the illness or injury not being a long-enough period to entitle them to benefits.

Misconduct reduces amount

[157] Section 392(3) of the Act requires that if the Commission is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.

[158] The section requires that consideration be given by the Commission, amongst other things, as to whether a person’s misconduct contributed to the decision to dismiss an employee even if the Commission has found that there was no valid reason for the person’s dismissal. However, if there was no valid reason for the dismissal that may be relevant to the Commission’s decision as to the appropriate amount by which the amount of compensation should be reduced.13

[159] I am not satisfied that Mrs Rezaeifard engaged in any misconduct which contributed to the Respondent’s decision to dismiss her. It is noted that Ms Auer-Hernandez was unpleased with her observations that Mrs Rezaeifard had not accurately recorded her medical history at the commencement of her employment, however it was not stated by the Respondent as a reason for the dismissal. Accordingly, I cannot be satisfied a reduction can be made.

Shock, distress etc. disregarded

[160] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mrs Rezaeifard by the manner of the dismissal.

Compensation Cap

[161] I must reduce the amount of compensation to be ordered if it exceeds the lesser of the total amount of remuneration received by the applicant, or to which the applicant was entitled, for any period of employment with the employer during the 26 weeks immediately before the dismissal, or the high income threshold immediately prior to the dismissal.

[162] The high income threshold immediately prior to the dismissal was $153,600, and the amount for 26 weeks was $76,800. The amount of compensation the Commission will order does not exceed the compensation cap.

Payment by instalments

[163] This is not an appropriate consideration given the size of the Respondent.

Order of compensation

[164] I have determined that the Respondent is to pay to Mrs Rezaeifard ten weeks’ compensation at the rate of $730.00 per week. I make a deduction of two weeks on account of the notice paid to her on termination. The amount to be paid to Mrs Rezaeifard is eight weeks x $730.00 which is equal to $5,840 gross less tax as required by law.

[165] In addition, the Respondent is to pay superannuation at the rate of 9.5% (as the Superannuation Guarantee Rate was at the time of the dismissal), being an amount of $554.80 into Mrs Rezaeifard’s superannuation fund.

[166] The above amounts are to be paid within 14 days of the date of this decision.

[167] An Order of compensation [PR733769] will be issued concurrently with this decision.”

Rezaeifard v Green Leaves ELC Pty Ltd T/A Green Leaves (2021) FWC 5905 delivered 13 September 2021 per Hunt C