Compensation for unlawful dismissal

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There are a number of provisions of the Fair Work Act which render certain dismissal unlawful, including the general protections. Compensation for unlawful dismissal is rarely ordered by the Federal Court or the Federal Circuit Court of Australia primarily because it is so expensive to litigate in those courts. And although the jurisdiction is costs free by which I mean that costs cannot be ordered except in exceptional circumstances, there is on balance a distinct advantage to employers which have deeper pockets than employees.

Accordingly it is useful to see a judgment on the issue of compensation for unlawful dismissal, and what follows is an extract which does just that.

“Compensation

  1. The Court made an order allowing the FW Ombudsman to make submissions on compensation the Respondents should be held liable to pay by way of damages for economic and non-economic loss of Mr Singh.
  2. The Court may make any order for compensation it deems appropriate pursuant to s.545(2)of the FW Act, including compensation for economic and non-economic loss “because of the contravention”. The language of s.545(2)of the FW Act implies there “must be an appropriate causal connection between the contravention and the loss claimed”: Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526; (2011) 205 IR 392; (2011) 63 AILR 101-330 at [423] per Barker J.
  3. The level of compensation at the discretion of the Court must be no greater than what is reasonable in all the circumstances: Aitken v Construction, Mining, Energy, Timberyards,Sawmills & Woodworkers Union of Australia – Western Australian Branch(1995) 63 IR 1; (1995) 38 AILR 3-187(75) at [9] per Lee J; Fair Work Ombudsman v Skilled Offshore (Australia) Pty Ltd [2015] FCA 275 at [72] per Gilmour J.
  4. The FW Ombudsman sought compensation on behalf of Mr Singh for:
  5. a)pure economic loss arising from the date of termination with Siner Enterprises to commencement of alternate employment, claimed in the amount of $11,390.38;
  6. b)economic loss resulting from the forfeiture of Mr Singh’s visa application and the unnecessarily incurred professional fees arising as a result of this in the amount of $6,495; and
  7. c)further economic loss in having to gain sponsorship from another employer in order to gain a subclass 457 work visa, and outlaying the amount of $10,000 to do so.
  8. The evidence establishes that:
  9. a)Mr Singh also worked as a factory worker with a company called Ferro during the time that he worked at Siner Enterprises and that he would undertake his duties with Ferro earlier in the day, before commencing with Siner Enterprises in the late afternoon or early evening: First Singh Affidavit at [9] and [53]-[54];
  10. b)the termination of his employment at Siner Enterprises deprived Mr Singh of a potential source of income in addition to his income derived from working at Ferro: Fourth Singh Affidavit at [19];
  11. c)following the termination of his employment by Siner Enterprises Mr Singh endeavoured to find alternative employment to mitigate his loss over a period of approximately 14 weeks from 18 September 2012 to April 2013: Fourth Singh Affidavit at [14]-[18], and in that regard Mr Singh’s evidence is that he applied for about 30 jobs working as a chef in a restaurant, went to approximately six to seven interviews, and ultimately Mr Singh appears to have recommenced working in April 2013, first as a chef at an Indian restaurant and then at a bar and bistro, and in the latter job not on a sponsored visa but on a bridging visa: Fourth Singh Affidavit at [18];
  12. d)Mr Singh had applied for a sub-class 475 business (long stay) visa on the basis of a sponsorship to work in the Indian restaurant in April 2013, but that application was rejected in May 2013 for reasons particular to the business systems of the employer concerned, and the cost of applying for that visa, including migration agent’s fees, was approximately $7,000: Fourth Singh Affidavit at [16]-[17];
  13. e)in July 2013 Mr Singh applied for a partner visa which was to be sponsored by his girlfriend but that visa was rejected on the basis that Mr Singh and his partner were not in a legitimate relationship: Fourth Singh Affidavit at [19]; and
  14. f)in December 2013 Mr Singh started working at a restaurant in Fremantle, and he applied for a sub-class 457 business (long stay) visa in September 2014 which was approved in April 2015: Fourth Singh Affidavit at [20]-[22]. Mr Singh says that the cost of that visa, including migration agent’s fees, was about $10,000, but he has no receipts: Fourth Singh Affidavit at [21].
  15. The FW Ombudsman says that Mr Singh would have been entitled, based on a 38 hour week and an hourly rate of $18.58 per hour to $706.10 per week or $9,885.40 for the 14 week period from 18 September 2012 to 8 April 2013 had he continued to work at Siner Enterprises. It was also submitted that pursuant to s.87 of the FW Act Mr Singh would have accrued approximately 81 hours of annual leave, which based on the hourly rate, is a further amount of $1,504.98. An amount of $11,390.38 (gross) is therefore claimed for lost wages and accrued annual leave. Those submissions are accepted as accurate by the Court.
  16. The loss of $11,390.38 is directly attributable to the unlawful termination of Mr Singh’s employment by Siner Enterprises. Had that employment not been terminated then there is no reason to believe that Mr Singh would not have continued to work at Siner Enterprises until 8 April 2013 when he obtained other employment. In the circumstances, the Court finds that the Respondents are jointly and severally liable to pay to Mr Singh compensation in the amount of $11,390.38 for lost wages and accrued annual leave.
  17. The FW Ombudsman also claims an amount comprising $2,095 forfeited on a visa application in relation to Mr Singh’s employment with Siner Enterprises: Fourth Singh Affidavit at [10]-[13] and Annexure GS 11, and $4,400 unnecessarily incurred in professional fees in relation to that visa application: Fourth Singh Affidavit at [11] and Annexure GS 12.
  18. By reason of the unlawful termination of employment the monies paid in relation to the visa application and professional fees were wasted by Mr Singh as he was unable to obtain a visa in circumstances where he was no longer employed, and therefore no longer sponsored. In the circumstances there should be a further order that the Respondents be jointly and severally liable for the sum of $6,495 for economic loss suffered by Mr Singh in this respect.
  19. A claim is also made in relation to the $10,000 spent by Mr Singh in obtaining his current sub-class 457 business (long stay) visa from his current employer, and it is asserted that but for the unlawful termination of Mr Singh’s employment by Siner Enterprises that Mr Singh would not have had to expend those funds to secure a visa in Australia.
  20. In the Court’s view the causal connection between the unlawful termination of Mr Singh’s employment and the expenditure of the $10,000 for the current sub-class 457 business (long stay) visa is not readily apparent. On the evidence, Mr Singh had applied in April 2013 for a sub-class 457 business (long stay) visa in relation to other possible employment, but was unsuccessful when the sponsorship application was rejected by the Department of Immigration and Citizenship (as it then was). Mr Singh then worked on a bridging visa, and then applied for a partner visa, which application was also rejected. He commenced his current employment in December 2013, but it was not until September 2014 that he made the application for a sub-class 457 business (long stay) visa, in relation to which he was successful in April 2015. The Court observes that even setting aside Mr Singh’s earlier attempt to obtain a sponsored employment visa as a result of the employment at an Indian restaurant, his other employment at a bar and bistro, and his unsuccessful attempt to obtain a partner visa, that he did not commence working at his current employer until some 15 months after the unlawful termination of his employment at Siner Enterprises, and did not apply for the sub-class 457 business (long stay) visa until two years after the unlawful termination of his employment by Siner Enterprises. In those circumstances, the Court is not prepared to find that the expenditure post-September 2014 for a sub-class 457 business (long stay) visa was causally connected to the unlawful termination by Siner Enterprises. It might equally be said to have been caused by the earlier unsuccessful sponsorship application with the Indian restaurant, or the unsuccessful application for a partner visa. In any event, it cannot be said that an application for a sub-class 457 business (long stay) visa more than two years after the unlawful termination was because of the contravention or that there is an appropriate causal connection between the unlawful termination contravention and the loss claimed. In those circumstances the claim for an additional $10,000 of economic loss is rejected.”

Fair Work Ombudsman v Siner Enterprises Pty Ltd (No 2) FCCA 589 delivered 15 March 2018 per Lucev J