Unfair dismissal and employee support

This passage from a Fair Work Commission unfair dismissal case sets out in very clear and simple terms the obligations (or in this case lack of obligation) about the provision of support persons in an employment disciplinary context.

“Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of the Applicant was harsh, unjust and unreasonable. The was no valid reason for the dismissal and the termination was procedurally deficient. Remedy [2023] FWC 765 8 [49] It follows that the Applicant was unfairly dismissed in accordance with s.385 of the Act. Being satisfied that the Applicant was unfairly dismissed, I am required by s.390 to consider whether to order reinstatement or the payment of compensation. [50] At the hearing before me, the Applicant confirmed that reinstatement was not sought. Having regard to that fact and the other evidence before me, I am satisfied that an order for reinstatement would be inappropriate: s.390(3)(a). [51] By contrast, I consider that an order for compensation is appropriate in the circumstances. The dismissal was plainly unfair and the Applicant has suffered financial loss as a result. [52] In determining compensation, I am required to take into account all the circumstances of the case, including the matters listed in s.392(a) – (g). Any misconduct by an employee contributing to the dismissal may reduce the amount that would be otherwise ordered: s.392(3). Compensation is not payable for shock, distress and the like: s.392(4). [53] Dealing first with the remuneration that the Applicant would have, or would have been likely to have, received if she was not dismissed (s.392(c)), I consider that the Applicant would have remained employed for no longer than 6 months. The scenario her evidence describes at Kayda Care indicates a poorly managed workplace that was causing the Applicant some distress. While I consider that the Applicant was not willing to lose her remaining employment, I consider that it is likely she would have left by no later than 6 months. [54] The Applicant’s evidence was that she received (net of tax) on average about $750 per week. If she was working for a further 6 months, she would expect to receive a further $19,500 (net of tax), although it would appear this amount represents an underpayment of the amounts actually payable. [55] I deduct from this the amounts the Applicant had actually earned (s.392(e)) between the time of dismissal and my order for compensation. I also must deduct any amount reasonably likely to be earned in the period after making my order and the actual compensation: s.392(f). To the Applicant’s credit, she has been successful in obtaining alternative work within a relatively short period after her dismissal. Recognising that there might be some ups and downs as to the future of that work, I find that as a result of the dismissal, the Applicant’s loss of income is approximately 4 weeks’ pay. [56] Based on her weekly pay, her loss is $3,000, net of tax. I make no deduction for misconduct or contingencies. [57] I also make no deduction on account of any failure by the Applicant to mitigate her loss. To the contrary, Kayda Care is fortunate the Applicant was diligent in finding fresh work and was mostly successful in mitigating her loss. [58] There is no evidence before me to suggest that an order for $3,000 would affect the viability of the business (which is possibly inviable, whether or not I make an order for compensation) and I make no deduction on account of that factor. Put differently, if Kayda Care is to be wound up, the Applicant may or may not be able to enforce the full value of her remedy [2023] FWC 765 9 in this proceeding but that will be a matter to be determined in the process of liquidation (if it occurs). There are no other matters that I consider are relevant that affect my assessment of compensation. [59] That amount is well within the statutory cap. I shall therefore order that the Applicant be paid an amount of $3,000 net of taxation plus 10.5% superannuation. [60] An order5 to this effect will be issued with this decision.”

Hughes v Kayda Care Pty Ltd –(2023) FWC 765 delivered 12 April 202per  Bell DP