The Full Bench has held that compensation awarded to an employee in an unfair dismissal application should be reduced. The Full Bench found that the incorrect award was made in the calculation of entitlements in the first instance, and that the distress experienced by the employee was not beyond that which can be attributed to most dismissals.

Background

The respondent was employed as a kennel hand at the appellant’s business and was responsible for the care of the dogs at the kennel. On 3 February 2020, the appellant dismissed the respondent.

First instance

The respondent commenced unfair dismissal proceedings in the Commission. The appellant did not appear before the Commission at the first instance hearing, having previously been granted multiple extensions of time and adjournments. The learned Commissioner found in favour of the respondent and awarded compensation for loss and injury in the sum of $9,438.89. The appellant appealed the decision to the Full Bench.

Appeal

The appellant appealed the matter on three main grounds, being:

• The finding of the Commission that the Respondent was unfairly dismissed was incorrect on the evidence;
• The finding of the Commission that the Respondent’s position was a Level 2 position covered by the Animal Welfare Industry Award (Award) was incorrect at law; and
• The award of compensation for distress in the decision was not supported by the weight of the evidence.

The appellant submitted that new evidence should be considered by the Full Bench, given that he was unable to participate in the first instance hearing.

The respondent contended that the evidence was not new, was available to the appellant before the first instance hearing. The respondent contended that, even if the new evidence were admitted, a finding that the respondent was unfairly dismissed would still have followed.

Findings

The Full Bench, referring to the test in Underdown v Dowford Investments Pty Ltd [2005] WAIRC 01243; (2005) 85 WAIG 1437, held that the appellant had not made out grounds for the application to tender new evidence to succeed. The Full Bench held that, on the evidence available to the learned Commissioner, that it was open to her to find that the respondent had been unfairly dismissed.

The Full Bench considered that the Award did not apply to the respondent, finding that any entitlements were to be calculated at the respondent’s rate of pay being $23.59 per hour.

While the Full Bench noted the unsavoury, rude, and threatening conduct of the appellant post-dismissal, the Full Bench was not persuaded that the impact or injury of the dismissal suffered by the respondent, was beyond the level that could be attributed to most dismissals.

The Full Bench upheld the appeal in part. The Full Bench ordered that the order of compensation be varied by calculating the respondent’s compensation for loss of five weeks, plus two weeks’ notice, based on 36.3 hours per week at the rate of $23.59 per hour, with no award of compensation for injury.

The decision can be read here.