Maynard v Inner West Towing Pty Ltd [2017] FWC 569 (25 January 2017) [2017] FWC 569 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal David Maynard v Inner West Towing Pty Ltd (U2016/2587) SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 25 JANUARY 2017 Application for relief from unfair dismissal. [1] On 1 June 2016 Mr David Maynard applied for an unfair dismissal remedy pursuant to s.394(1) of the Fair Work Act 2009 ( the Act ). Mr Maynard’s application was allocated to me for arbitration. [2] On 14 December 2016, I issued a decision ( Decision ) in which I found that Mr Maynard’s dismissal was unfair 1 and that compensation was the appropriate remedy. 2 [3] I directed the parties to make further submissions setting out their calculations in relation to any compensation 3 I might order paid to Mr Maynard. [4] I heard evidence from Mr Maynard regarding his up-to-date circumstances, and received further submissions from the parties, on 11 January 2017. [5] Mr Maynard was represented by Ms Lucy Saunders from the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union ( AMWU ). Mr Charly Tannous, solicitor, from Sage Solicitors, represented Inner West Towing Pty Ltd ( the Respondent ). Consideration [6] Section 392 of the Act sets out the relevant factors to be considered when calculating compensation. I have taken into account the detailed submissions of the parties on the issue of compensation and have given consideration to the matters referred to in s.392 of the Act. s.392(2)(a) – effect on viability [7] Consistent with my earlier Decision, 4 I am satisfied that s.392(2)(a) is a neutral factor. s.392(2)(b) – length of service [8] As I observed in my earlier Decision, 5 Mr Maynard was not employed for a long period. The AMWU submits that this is a neutral factor. I agree. I am not persuaded that the length of Mr Maynard’s employment justifies any reduction in any compensation I might consider payable to him in the circumstances of this application. The loss of employment, even after a short period of employment, is still a significant matter and I am satisfied that the circumstances of this application it was a very significant matter to Mr Maynard. s.392(2)(c) – remuneration Mr Maynard would have been likely to receive [9] Consistent with my earlier Decision, 6 I am satisfied that Mr Maynard would have continued to be employed for at least twelve months from the date of his termination of employment. [10] The AMWU submits that any payment of compensation arising from this prospective period of employment should be based on Mr Maynard’s gross income. The Respondent asserts that this amount should be based on his net (after tax) income. In my earlier Decision I found that Mr Maynard would be responsible for any taxation arising from the compensation that he receives. As a consequence, if Mr Maynard is awarded an amount based on his net income, he would, in effect, be taxed twice on any compensation he receives. I am satisfied that my consideration of any renumeration Mr Maynard would have been likely to receive should be based on his gross income which was $59,187 calculated as follows: $54,000 in gross wages; and $5,187 in superannuation. [11] The Respondent asserts that this amount should be reduced by 25% for contingencies. It has been nine months since Mr Maynard’s employment was terminated. The balance of the period for which I think he would have remained employed is three months. I have decided to apply a 5% reduction for contingencies for that three months. Mr Maynard’s gross income for the remaining three months of that 12 months, if all things remained equal, would have been $14,796. A 5% reduction for contingencies in that three months is $739.80. s.392(2)(d) – efforts to mitigate loss [12] In my earlier Decision I found that Mr Maynard made efforts to mitigate his loss but was not successful until he obtained part-time work as a bus driver. [13] I also observed that Mr Maynard did not seek work as a tow truck driver which may have been more remunerative. While the Appellant submits that this should be given limited weight, the Respondent submits that Mr Maynard would have only suffered 1-2 weeks of lost income had he applied for positions as a tow truck driver. There is no evidence that I can rely upon to make any finding regarding the availability of work in tow truck industry. I reject that submission. [14] However, I agree with the respondent that a reduction in compensation is warranted pursuant to s.392(2)(d). In this regard, I am determined that a 15% deduction is appropriate in the circumstances. s.392(2)(e) – amount earned between time of dismissal and the making of the order for compensation [15] I have taken into account the time it took Mr Maynard to find alternative employment. [16] Based on Mr Maynard’s evidence I have calculated Mr Maynard’s net average weekly earnings in his new employment as $773.23. Based on his net average weekly earnings Mr Maynard’s gross average weekly earnings are approximately $1,100 per week. s.392(2)(f) – income Mr Maynard is likely to earn between the making of the order and actual compensation [17] I am satisfied on the evidence that Mr Maynard will continue to earn his present average weekly earnings as a bus driver. s.392(2)(g) – any other factor that the Fair Work Commission considers is relevant [18] I am not satisfied that there are any other factors that are relevant pursuant to s.392(2)(g). [19] As I observed in my earlier Decision, the factors provided in s.392(3) -(4) do not apply. Consistent with paragraphs [25] – [26] of the Appellant’s submissions, the factors provided in s.392(5) -(6) do not apply. Conclusion [20] Mr Maynard’s gross income at termination of employment including superannuation was $59,187. I have determined that there should be reductions from compensation paid to Mr Maynard. They are: ● for contingencies, a sum of $739.80, leaving a total amount of $58,447.20; ● a reduction in the amount of $58,447.20 by 15% ($8,767.08) to reflect my findings on mitigation leaving an amount of $49,680.12; and, ● a reduction of $40,700 based on a gross income of $1,100 per week to reflect the amount Mr Maynard will have earned in other income by 11 May 2017. This leaves an amount of $8,980.12. [21] Mr Maynard’s compensation must not exceed half the amount of the remuneration that was received by Mr Maynard, or that Mr Maynard was entitled to receive, for any period of employment with the employer during the 26 weeks immediately before the dismissal. I am satisfied that this amount is $29,593.50. The amount I intend to order in compensation payable to Mr Maynard is less than this amount. [22] I reject the respondent’s application that any amount payable to Mr Maynard should be paid by instalments. There was no evidence provided in support of this application. [23] I order that the respondent pay $8,980.08 to Mr Maynard, without deduction of any amount for the payment of taxation, within 14 days. SENIOR DEPUTY PRESIDENT Appearances : Ms L Saunders for the Applicant. Mr C Tannous for the Respondent. Hearing details: 2017 Sydney: January, 11 1 [2016] FWC 8582 at [16]. 2 Ibid at [19]. 3 Ibid at [24]. 4 Ibid at [20]. 5 Ibid 6 Ibid Printed by authority of the Commonwealth Government Printer <Price code C, PR589742>