Adam Barker v DSB Partners Pty. Ltd. T/A DSB Landscape Architects [2024] FWC 3119

1 Fair Work Act 2009 s.394—Unfair dismissal Adam Barker v DSB Partners Pty. Ltd. T/A DSB Landscape Architects (U2024/5607) COMMISSIONER MIRABELLA MELBOURNE, 13 NOVEMBER 2024 Application for an unfair dismissal remedy [1] On 24 September 2024, I issued a decision1 in which I found that the summary dismissal of Adam Barker (The Applicant) by DSB Partners Pty. Ltd. (the Respondent) on 26 April 2024 was unfair. [2] The parties subsequently filed materials on the question of remedy, and I have taken into account these submissions in addition to the material before me, including correspondence from Worrells, a company appointed when the Respondent entered voluntary administration on 16 October 2024. Remedy [3] The Applicant seeks compensation rather than reinstatement. Having regard to the findings in my Decision,2 I am satisfied the Applicant has been adversely affected by the dismissal and that in all the circumstances an order for the payment of compensation is an appropriate remedy. [4] Section 392 provides that in determining an amount for the purposes of an order for compensation, I must take into account all the circumstances of the case, including the matters set out in paragraphs 192 (2) (a) – (g). The established method of calculating compensation under these provisions is discussed in Bowden v Ottry Homes Cobram and District Retirement Villages Inc (Bowden).3 [5] Section 392(2)(a) is concerned with the effect any order for compensation may have on the viability of the employer’s enterprise. On 16 October 2024, the Respondent was placed into voluntary administration. Worrells, has advised that the second meeting of creditors is to be held on 19 or 20 November 2024 (the creditors’ second meeting) and that they will be recommending that the Respondent be placed into liquidation. [2024] FWC 3119 DECISION -- 1 of 3 -- [2024] FWC 3119 2 [6] The issue of whether the Respondent is placed into liquidation is a decision for the creditors to make and I cannot presume a particular outcome. A significant compensation order would in all likelihood, further impact the viability of the Respondent and tip it towards liquidation. For this reason I have applied a 25% deduction ($15,312.50) from the compensation sum. I note that the Applicant’s total length of service (s.392(2)(b)) with the Respondent was 15 years. [7] I am required to take into account how long the Applicant would have been employed and his consequent renumeration if he had not been dismissed (s.392(2)(c)). At the time of dismissal the Applicant’s annual salary was $130,000 exclusive of superannuation. Given that the company is in voluntary administration, the likely hypothetical scenario I envisage is that the Applicant would have been employed at least until 16 October 2024 when the business entered voluntary administration. In that period, he would have earnt income equivalent to 24 and a half weeks’ pay, that being $61,250. [8] The Applicant says no Director Landscape Architect jobs were advertised that he could apply for and that he mitigated his losses because he established his own business but, as at 8 October 2024 the business was operating at a loss (s.392 (2)(d) and (e)). [9] The Respondent gave evidence that the position of Director Landscape Architect is not ordinarily advertised and is a position offered by invitation. He gave further evidence, that there is currently a shortage of senior landscape architects and submitted that the Applicant could have applied for positions advertised on SEEK or the Australian Institute of Landscape Architects Career Board in the Greater Melbourne Area. These positions listed remuneration between $90,000 to $130,000. This evidence was not contradicted. [10] Although the Applicant had established a business that, at the time he filed submissions in this matter, was running at a loss, he did seek the assistance of a recruitment officer in finding a new job. It took him eleven weeks to speak to a recruitment officer regarding job vacancies. The Applicant did not apply for any Landscape Architect positions on the basis that they were not Director Landscape Architect positions. [11] The Applicant could have made greater efforts to find alternate employment and unnecessarily limited himself to a job title that is, on the uncontradicted evidence of the Respondent, only offered by invitation not advertisement. The Applicant must provide evidence that he has taken reasonable steps to minimise the impact of the dismissal. What is reasonable depends on the circumstances of the case. My assessment is that the Applicant did not take reasonable steps to mitigate his loss. For this reason, I have applied a 20% deduction ($12,250) from the compensation amount. [12] I have no substantive materials before me relevant to any calculation of a sum under s.392(2)(f). [13] Other relevant factors I have considered (s.392(2)(g)) include that the Applicant travelled overseas for a total of 5 weeks between 21 July 2024 and 25 August 2024 and that he has already been paid annual leave for this period. Accordingly 5 weeks pay being $12,500 is deducted from the compensation sum. -- 2 of 3 -- [2024] FWC 3119 3 [14] There is no need to reduce the amount for misconduct (s.392(3)) and the amount I have decided to award is not in excess of the compensation cap (s.392(5)). [15] For the reasons set out above, I am of the view that it is appropriate in the circumstances of this matter, that the Applicant receive an amount of compensation in the sum of $21,187.50 gross with deductions for any taxation required by law plus superannuation, payable within 28 days of this decision. [16] An order giving effect to this decision is issued separately in PR781172. COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR781171> 1 [2024] FWC 2381. 2 [2024] FWC 2381. 3 Bowden v Ottry Homes Cobram and District Retirement Villages Inc [2013] FWCFB 431. -- 3 of 3 --